G. W. Campbell v. The State, 30 Tex. Ct. App. 645

WHITE, Presiding Judge. Appellant was indicted in the District Court of San Saba County for the murder of one Edward R. Hartman. The district judge of his own motion, owing to the fact, as stated by him, that a trial alike fair to the accused as well as the State could not be had in either the counties of San Saba or Mills, the latter being the next nearest court house to the court house of San Saba, “owing to influential combinations which would deter witnesses from testifying fully and freely,” changed the venue of the case to Mason County.

On the trial in the District Court in Mason County appellant was found guilty of murder in the second degree, his punishment being fixed at five years in the penitentiary. Defendant’s first bill of exceptions complains, that he was not served with a copy of the special venire one whole day prior to the time he was placed upon trial. It appears from the bill that at the time the special venire was returned by the sheriff, on the morning of the 9th day of March, the defendant was on bail, and not confined in jail..

The clerk immediately made out a list of the names of the jurors summoned on said special venire, and furnished the same to the counsel for defendant. Defendant not being in jail at the time his counsel were furnished with this list, could not claim further exemption from liability from trial for longer than one day. Code Crim. Proc., art. 617. After defendant’s counsel had been served with a list of the special venire, defendant was rearrested on motion of the district attorney, because his bail was insufficient in amount, and placed in jail on the evening of the 9th of March.

It is further made to appear, that on the 10th day of March the defendant, after he was placed in jail, was also served with a copy of the special venire. The defendant was not put upon trial until March 12. The objection as to the'service of the copy of the venire is not well taken.

But it is further objected, that in the copy served upon him the name of one of the jurors, to wit, Henry Hasse, who had been summoned as a juror, was omitted; that the juror was present; and while the other jurors were being impanelled it was discovered that the name of Henry Hasse was omitted from the list served upon the defendant in person.

After all the names on the copy of the list served upon the defendant had been exhausted, Henry Hasse was called and was tendered for examination as a juror, but the defendant objected, because his name was not on the list served upon him; whereupon he was stood aside by the court, and the sheriff instructed to summon fifteen talesmen to complete the jury, which having been done, and Henry Hasse being one of the fifteen talesmen summoned by the sheriff, defendant asked that the list of .talesmen be set aside because Henry Hasse was one of same, which was refused by the court.

In his explanation of this bill of exceptions the learned trial judge says, that the juror Henry Hasse on his voir dire examination as a talesman stated that he could neither, read nor write the English language, and for this cause was challenged by the State, and the court sustained the challenge, to which the defendant excepted. We see no error in the ruling of the court in this matter.

By defendant’s third bill of exceptions it is shown, that on redirect examination of its witness Hat Hartman the State was permitted, over objection of the defendant, to ask this witness, “What was the reason you. held up Campbell and the other boys, Trowbridge and Stovall, and wanted to keep the drop on them, when you met them in the pasture?” The objection to this question was, that the matter inquired of was irrelevant and immaterial.

The witness’ answer was, “Because I believed Campbell had killed my brother, and belonged to the mob.” The defendant objected to the answer, and asked that it be withdrawn from the jury, which was refused. We are of opinion the court erred in both these rulings, and especially as to the answer, because it gave “the opinion” merely of the witness that Campbell killed his brother, and belonged to the mob. Such opinion was not legitimate evidence.

We are also of the opinion that the court erred in permitting the declarations, statements, and advice given by three parties, to-wit, his attorney, the district judge, and the district attorney, to the State’s witness J. B. Hartman in regard to his testimony, these statements and advice being wholly irrelevant and not pertinent to the issues in the case.

Such evidence was purely hearsay, and calculated to prejudice the defendant in the minds of the jury by impressing upon them the opinion of the district judge and the district attorney as to the importanee of his testimony, and the necessity that it should be concealed or withheld until the final trial óf the defendant. McCracken v. The State, 6 Texas Ct. App., 507; Chumley v. The State, 20 Texas Ct. App., 547; Maines v. The State, 23 Texas Ct. App., 568; Nalley v. The State, 28 Texas Ct. App., 387.

Defendant’s seventh bill of exceptions shows that the State was permitted, over his objection, to prove by the witness J. R. Hartman what he told his wife on the night his son was killed, as follows: “I told her to bear it the best she could; that Campbell and the boys had killed Ed., but were afraid to carry him off, and that Campbell would send word next morning.” This evidence was opinion evidence, and clearly inadmissible, the defendant not being present. See authorities above cited. The court should have excluded this evidence in conformity with the motion of defendant to that effect.

By defendant’s twelfth bill of exceptions it is shown, that his witness M. Campbell had been attached, had been sworn and placed under the rule with the other witnesses; that after the trial had been proceeded with, and the State’s witness Mrs. Loftin had given in her testimony, in which she implicated said witness M. Campbell as one of the parties engaged in the killing of deceased, the district attorney procured a complaint against M. Campbell for the murder of Ed. Hartman, and under said complaint the witness was arrested and placed in jail.

When the witness was brought from the jail to testify’in the case, and placed upon the stand, the district attorney asked the court to inform the witness, that while he was permitted to testify, still anything he might say could hereafter be used against him. This request upon the part of the district attorney was made in the presence and hearing of the jury, and the defendant excepted.

The court then cautioned the witness, that he “was charged with the same crime as defendant, his father, and that he might testify, but that if he testified to any fact in any way criminating himself it could be used against him;” to which the defendant objected and excepted that the same was improper, calculated to impair the weight of the witness’ testimony, and to prejudice the jury. We are of the opinion that the objection was well taken.

The witness not being under indictment was a competent witness in the case (Code Crim.Proc., art. 731), and it was erroneous to caution him with a view to his trial under an indictment thereafter to be found against him, and especially so in the presence of the jury. It certainly was calculated to impair the witness’ credibility and standing before the jury- For the errors above pointed out, the judgment is reversed and the cause remauded. Reversed and remanded. Davidson, J., being disqualified, did not sit in this case.