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SUPREME COURT RECORDS PAGE
7
File contributed by Lisa Lach
and proofed/formated by Dena Stripling APPEAL from the District Court of Fayette. Tried
below before the Hon. L. W. Moore. *1 By indictment, filed in the District court of
Fayette County, on November 17, 1879, the appellant was charged with the murder of
William Finkelstien, on the twenty-first day of October, 1879, by striking him on the head with a
shovel. The conviction was for murder in the first degree, and the
punishment awarded by the jury was confinement in the penitentiary for the term of his natural life. The
trial was had in November, 1882. Nat Holman was the first witness for the State.
He testified, in substance, that he knew the defendant, but was not acquainted with William Finkelstien, the deceased. The first and only time he ever saw the deceased
was at his, the witness's, gin, in Fayette county, Texas, on the evening of
_______, 1879. Deceased was then alive, but suffering from a wound on the right side of
his head, just above and behind the ear. The wound was about two and a half or three inches long
and about a half inch deep. The skull was crushed in, but the skin was not broken.
The indentation was large enough to hold an egg. When the witness reached his gin
that day, he found the deceased lying on some bagging under the
cotton shed, wounded as described, with the blood flowing from his nose, mouth and ears. He was
then alive, but speechless. He muttered unintelligibly several times before his
death, which occurred some four hours afterward. Several persons were with the
deceased when the withess reached
him, and were pouring water over his head, among whom Cellis Holman and Felix Bridge. Cellis Holman showed the witness the shovel with which the
wound was said to have been inflicted. The witness knew the shovel well. It had
been in use at the gin for several years, being used for shoveling cotton
seed. It was a large iron shovel, with a handle about four feet
long, and weighed some eight or ten pounds. At the place where the handle fitted in,
commonly called the eye, there was a double thickness of the iron, making
the entire thickness of the iron at that place about a quarter of an inch. Witness bought
this shovel because of its peculiar make, and had never seen another like
it. If the wound on the deceased was actually inflicted by this
shovel, he must have been stricken with the eye of it, as no other part of
the shovel would make such character of wound. Witness did not go up into the gin that day,
but went up there the next day?? Proceeding with his testimony, the witness said:
"When I went up into the gin next morning, I found, in the main room, a pool
of blood, about the middle of the walk running from the front door back to the gin stand.
This pool of blood was near where the shaft comes up through the floor. It was
at a point about opposite the middle of the second left hand
cotton seed stall, as you go into said room from the front door. There were three cotton seed
stalls on the right hand side as you went in said room from the
front door, and each stall was separated from the other by a plank partition. There were also
three stalls on the left hand side, but the one nearest to the gin was a
sort of half stall. These stalls were usually filled with cotton
seed. A man standing at the gin stand could not see to the floor where the blood
was, but could have seen, around the corner of the second stall, any person standing
erect. I have owned the gin for several years, and am perfectly familiar with
its interior." Witness saw the defendant just before the
killing, but saw no more of him until the last term of the court. *2 On cross-examination, the witness stated that
he was not present, and knew but little about the killing. He reached the gin about two
o'clock p. m. He had no recollection of having previously seen the deceased.
He was not at the witness's house on that morning. Morgan Braker,
Cellis Holman, Felix Bridge, and four or five transient white men were at the
gin when the witness arrived there. One of these white men was named Russell, and another
Roberts. Witness was present at the inquest held by justice
Smith, and wrote down the testimony, but did not remember who constituted the jury. Witness was
taking no particular interest in the prosecution, but had said that
if the defendant got his just dues he would be hung. Cellis Holman
was feeding the gin on the day of the killing. The defendant was at the time, and had been for
three months, in the employ of the witness. Witness knew of no difficulty between the defendant and
Cellis Holman. With reference to this witness's testimony, the
transcript recites as follows: "In the absence of defendant's counsel, the
district attorney asked where he was, when witness replied in a low voice: 'I guess he has got
enough of it.' The court did not hear the remark. The attorney for the defense had
absented himself without the knowledge of the district attorney and
whilst the district attorney was examining the witness." Cellis Holman was the second witness for the State. He
testified that he knew both the defendant and the deceased. The latter was killed at Nat
Holman's gin in Fayette county, in the month of October, but
witness could not recall the year. Witness was present when the deceased died. He
was also present and testified before the coroner's inquest. Witness was feeding the gin on
the day of the homicide. The duty of the defendant in the gin was to shovel up
cotton seed in the small room containing the gin stand, and
take them to the stalls in the large room. For this purpose he used a large iron shovel, which is
the weapon with which he killed the deceased. He had often used the shovel and
was familiar with it. While witness was at his work at the gin stand
on that day, the defendant brought him a woman's sack, saying that he had just
bought it from a peddler down stairs, and asked if witness thought it large enough for his,
defendant's wife. Witness told him to try it on, and that if it would fit him it would
fit his wife. About this time the deceased came up stairs and asked
witness if he did not wish to purchase something. Witness replied that he did not, that he had
no money. Deceased replied: "Yes, you have plenty of
money." Witness then told him that possibly he would go down stairs presently and look at his goods.
Deceased then turned to go down stairs, when defendant
demanded of him to take the sack back, as it would not fit his wife. The deceased looked back and
said: "I don't do business that way; that is the way children do business,"
and walked on. Defendant thereupon reached back and secured the iron shovel. He caught it
by the handle, threw it up in a striking position, and followed the deceased.
When defendant got just about the corner of the partition dividing
the first cotton stall nearest the gin stand on the right hand side going from the
gin stand to the front door, the witness saw him strike forward with the shovel. Witness could
not see Finkelstien, the deceased, at that time, as he had passed the
said partition, but could see the defendant plainly. He saw the shovel as it went down, but could
not see what it struck, as, when it went down, the shovel part
passed down on the other side of the partition from the witness. The gin was running at the time, and
making so much noise that the witness could not hear the sound
of the blow, or whether any thing was said when it was inflicted. *3 After striking the blow the defendant came
back to the gin stand, threw down the shovel, and said: "D____n
him, I got him!" Witness stopped the gin, ran around to the place where he saw the defendant strike
the blow, and found the deceased lying forward on his face, in the walk, with his
head at a point about opposite the middle of the second stall. He had a wound on the right
side of his head, just back of the ear, and was bleeding profusely. The
defendant came up, and witness asked him: "Sam, what did you kill the man
for?" Defendant looked at the man, laughed, said nothing, sprang out of the
window and ran towards the river bottom. Witness ran to the door and called a man who came with
the deceased to the gin, told him Finkelstien
was killed, and he and witness, after washing deceased's face, carried him down stairs and laid him on
some cotton bagging under the cotton shed. Witness saw the defendant plainly when he struck the
blow. Witness, defendan t and deceased were the only parties in the gin at the
time of the killing. Witness saw no more of the defendant until at
the previous term of this court. He, witness, showed Nat Holman the shovel with which
the blow was struck on the same day. It was a heavy shovel with a handle three or four feet
long. The shovel was usually used with both hands. Defendant held it in his right
hand when he struck the blow. Defendant did not offer to assist the witness,
either to wash deceased's face or to take him down stairs. He merely looked at deceased
after he had felled him, laughed and ran off. Witness thought he could recognize
the man who was with the deceased on that day, and pointed out a man present in
court as the individual. He was not certain the individual indicated was
the man, but believed him to be. Cross-examined, the witness stated that the
deceased had a whip in his hand when he came into the gin, and still had it when he started out.
It was rather a large sized whip, but witness did not take close
enough notice of it to be able to describe it. It was lying near and at the side of deceased when
witness got to him after he fell. Witness did not on a former trial of this
case say that after the deceased fell he still held the whip in his hand.
Deceased made no effort or demonstration to strike the defendant with the whip. If he had,
witness would have seen it. Witness at no time told Tom Braker
and Felix Bridge that he did not see the killing. Witness said nothing before the inquest about
the defendant laughing after the deceased fell, because no question was propounded to
him on that point. He merely stated that defendant looked at the
man and ran off. Previous to this killing witness and defendant had had
difficulties--one or two little fights--but had made friends, and witness had no grudge against him at
the time. The witness denied that he had at any time after
the killing told Handy Holman that he now "had Sam just where he wanted
him;" that he "was the only witness against him and could swear what he pleased." He had never
threatened to "get even" with the defendant. Witness did not examine the sack purchased by
the defendant. When defendant asked him if the sack would fit his
wife, witness told him that it would if it would fit him. There were three stalls on each side
of the big room. Witness was standing at the gin stand, feeding it when
the blow was struck, and was facing the big room. To feed a gin requires care, but in feeding
one the witness could look about and around without cutting his fingers in the gin.
Witness denied that he had ever said to defendant's counsel that, when he
asked defendant why he had killed the peddler, the defendant asked: "What! have
I killed him?" *4 Re-examined by the State, the witness
testified that he was standing some nine or ten feet from the defendant when he struck the blow, and was
looking directly at him. The deceased could not have struck the defendant
without the witness seeing him. Witness did not know the exact distances in the
gin, and when he spoke of distances did so upon opinion. When witness went to the deceased after
he had fallen, the whip lay a little to his right on the cotton seed. Deceased
had the whip in his hand when he started off. The first stall on the right hand side
going from the gin stand to the front door is partitioned from the second
stall by a plank partition about seven feet high, but on the side nearest the gin
stand there was no partition between the first stall and the way leading from said gin stand. The
cotton seed in said stall was kept from falling in by an old press door,
which was about four feet long, and three and a quarter feet wide. Witness could easily see over said
door, and there was nothing to obstruct his view beyond, between the gin
stand and the dividing partitions between the first and second stalls. M. Lauderstien was the
next witness for the State. He testified that he was the man pointed out by the last witness as the companion
of the deceased at the time of the killing. The witness Cellis Holman,
was mistaken; this witness was not the companion of deceased on that occasion. The deceased's companion at
that time was one Caimer, now in Mississippi or Kentucky. The witness, however, had
traveled with deceased before his death for five years, peddling, and
they were together on Holman's place about a week before the killing. The witness Cellis Holman had often seen this witness and deceased together. Here the State closed. T. W. Smith was the first witness for the
defense. He testified that he was a justice of the peace at the time of the homicide, and held the
inquest on the deceased's body. The papers containing the evidence were handed
by witness to B. D. Shropshire, county attorney, and he failed to turn them over to the
proper officers; for which failure the witness was indicted. Witness had not since seen the
said papers, and had no idea what had become of them, nor could he now remember their
contents. Witness could not remember the parties who constituted the coroner's jury. At this
point the district attorney stated that he would admit the loss of
the papers, and consent that parol evidence be received of their contents. C. Michaelis was the
next witness for the defense. He testified that he was a carpenter by trade, and that he could draw a correct diagram of a
given place. He drew the diagram in evidence, which is a diagram of the Nat Holman gin, in
Fayette county. It was prepared on the day preceding this trial by the
witness, who, for the purpose of drawing it, visited the said gin in company with
the defendant's counsel and two colored men. The spots in the center of the building, as
indicated on the diagram, represented blood spots, though witness could
not of his own knowledge say that they were blood spots. The witness, however, saw the spots. They
were on a small square movable platform in that room, which platform
covered the hole in the floor through which the shaft passed when the gin was in motion. The large
room is thirty-four feet long. The distance from the gin stand to the blood spots
is twenty-eight feet. There are stalls for cotton on each side of the
large room, but there were no partitions in them when witness was at the gin. It would depend
upon the height of the partitions whether a man could see from
the gin stand to the middle of the second stall. *5 Cross-examined, the witness stated that, if
the partition between the first stall on the right as you go from the gin and
the way running between the stalls was a door four feet by three and a half feet, a
man at the gin stand could easily see to the corner of the partition between the first and
second stalls. I. B. Holloway, district clerk, testified, for
the defense, that he was district clerk when Finkelstien was killed.
He knew nothing about the papers containing the proceedings of the coroner's inquest in that case. He had never seen
such papers. Handy Holman was the next witness for the State.
He testified that, when Finkelstien was killed, he was in the field on the Nat Holman place.
Witness had a conversation with Cellis Holman a
few days after the killing occurred, in which he asked Cellis if he saw the killing, to which Cellis answered that he only saw the defendant raise the shovel and make the blow; that he did not see the blow
when it fell. Cellis Holman and the defendant had a difficulty a
short time before the killing. Tom Braker testified,
for the defense, that he lived on Nat Holman's place, and was familiar with the gin house. Witness was at the gin house a few
days before this trial, along with the attorney for the defense
and other gentlemen, and pointed the blood spots out to them. Witness knew them to be blood spots,
because he saw them shortly after the killing. There were stalls on each side of the
big room, six or seven feet high. A man standing at the gin stand could not see
the point where the blood spots were. He could, however, have seen a man throw up
a shovel with a five foot handle. Witness could not say that a man standing a few
feet back from the blood spots could not be seen from the gin stand. The
partition between the end of the first stall, near the gin stand, and the
walk leading by it was not, at the time of the killing, constructed of an old three
foot door, but was a partition six or seven feet high. This the witness knew, because his
cotton was in that stall. Witness saw the woman's sack, which was the
cause of this difficulty. It was old, moth eaten and full of holes. "If a man was standing
behind the blood spots, and another was standing a few feet behind him, and
nearer the gin stand, a person at the gin stand could see the latter, but not the
former." Felix Bridge testified, for the defense, that he
was picking cotton in the neighborhood at the time of the killing. Soon after the homicide
occurred, Cellis Holman sent for the witness and explained to the
witness how the homicide occurred. He said that the deceased was a peddler, and, at
the gin, sold the defendant a sack, with which the defendant became
dissatisfied; that defendant asked him if he, Cellis, thought it
would suit his, defendant's wife; that he, Cellis,
replied to the defendant: "It may suit you, but it
won't suit your wife;" that thereupon defendant offered the sack back to the peddler,
and demanded return of the purchase money; that the pedler
replied: "I do not do business that way," and turned and walked off, when the defendant picked up the
cotton shovel and followed; but that he, Cellis, did not see the
defendant when he struck the blow. *6 On cross-examination, the witness stated that
he was the defendant's father-in-law. This conversation occurred a few days after the
killing. The witness, at that time, was somewhat excited about the affair. No one was present at
this conversation, save the witness, Cellis and the
peddler's partner. Others came up afterward. Monroe Richardson testified, for the defense,
that he was in the neighborhood when the killing occurred. Cellis
Holman told him about the attendant circumstances the day after the homicide occurred. He said, in that
connection, that the defendant came running by him, and said: "I have hit
that fellow;" that he went up to the man, and asked the defendant: "Sam, what did you kill this
man for?" That defendant replied: "What! Have I killed him? Is he dead?" and
then jumped out of the window, and ran off. Witness worked for Mr. Nat Holman, and was
familiar with the gin. A man could not occupy the gin stand and see to the middle of
the second stall; at least, the witness could not. There were stalls on each side of the big
room. Witness did not know the height of the partitions. Cross-examined, the witness stated that he did
not know whether or not the partition nearest the gin stand was formed of a small door. No one was
with witness when he had the conversation with Cellis,
deposed to. Witness had not thought of that conversation since, until called upon to testify in this case.
Nothing has occurred to fix this conversation in the witness's mind. Witness had
had no other conversation with witness Cellis. Here the
defendant rested. In rebuttal, the State produced several
witnesses who testified that the reputation of the State's witness Cellis Holman
was above reproach or suspicion. Nat Holman, recalled for the State, testified
that an old press door, four feet by three and a half, was used to enclose the side
of the first stall nearest the gin stand, which side was not planked up. It was thus used to
prevent cotton seed from falling out on the walk. When used for this purpose, it was set
up on its side. When not in use, it generally lay flat on the
floor. Witness did not know its position on the day of the homicide. The general and requested charges are here
incorporated in full, in accordance with the direction of the court. The general charge reads as
follows: "The defendant is on trial, charged with
the murder of Wm. Finkelstien, and pleads not guilty?? Every person of sound memory and discretion, who
shall unlawfully kill any reasonable creature in being, within this State,
with malice aforethought, either express or implied, shall be deemed guilty of murder.
Murder is distinguishable from every other species of homicide by the
absence of the circumstances which reduce the offense to negligent homicide or
manslaughter, or which excuse or justify the offense. All murder committed with express malice is
murder in the first degree, and all murder committed with implied malice is murder in the
second degree, and the distinction between express and implied malice determines
whether murder is of the first or second degree. *7 Malice means that state of a wicked and
depraved mind fatally bent upon mischief. The important inquiry in determining the
existence of express malice is, do the external circumstances, the acts and the conduct
of the accused at the time, before and subsequent to the killing, if such there be,
indicate a cool and deliberate mind and formed design to kill? If so, there is express malice. There is no certain or definite space of time
necessary to intervene between the formed design to kill and the fatal blow. A single moment of
time may be sufficient. All that is required is that the mind be cool
and deliberate in forming its purpose, and that the design to kill is formed. If you believe from the evidence that the
defendant did kill Wm. Finkelstien with express malice as before defined, you will convict him of murder
in the first degree. Implied malice is what the law implies from
every voluntary killing of a human being, when the circumstances, upon one hand, show no
express malice, nor upon the other any excuse justification or mitigation, nor reduce the offense to
manslaughter. Every voluntary killing of a human being without
deliberation, from some rash, inconsiderate impulse, would be upon implied malice, and would be murder in
the second degree. If you believe the defendant did kill William Finkelstien without express malice, yet if you believe such killing was committed
under such circumstances as that malice is implied, as before defined, you will convict of murder
in the second degree. If you have any reasonable doubt of the guilt of
the accused, you will acquit, and so you will acquit of any grade of the offense of which you
have any reasonable doubt. If you find the defendant guilty of murder in
the first degree, you will assess his punishment at death, or by confinement in the penitentiary for
life. If you find him guilty of murder in the second
degree, you will assess his punishment by confinement in the penitentiary not less than
five years; in either case stating the degree of murder. The jury are the judges of the credibility of
the witnesses, and weight of the testimony. L. W. MOORE, Judge." The requested and refused charges read as
follows: "First. The jury are the sole judges of the
weight to be given to the testimony of each witness, and the credibility of each witness. They can
discard a portion of the testimony of a witness or all of his testimony. A
witness may be impeached by his own contradictory statements, or by his
character for truth and veracity in the neighborhood in which he lives being successfully attacked. In either
case the jury has the privilege of discarding his evidence. Second. Although the law implies malice in case
of unlawful killing by means calculated to produce death, still in such case
the burden of proof does not shift from the State to the defendant, but the burden
remains on the State to prove the degree of the offense aliunde the
actual killing. *8 Third. Every person is presumed to understand
the probable result of his acts, and when an unlawful act is clearly shown to have
been committed, it is for the defendant to show facts which mitigate, justify or excuse,
so that a reasonable doubt at least may arise upon the entire evidence as to his guilt. If the
jury believe from the evidence that the deceased, William Finkelstien, said anything or committed any act at the time of the killing, which would
mitigate, justify or excuse the killing, they should take into consideration such saying or
act, and find their verdict accordingly; that is, either find the defendant guilty of
some lower grade of offense than murder in the first degree or acquit the defendant. Fourth. (Murder in the first degree has been
defined to you.) A murder committed under the influence of sudden rage, resentment,
passion or anger at some insult offered or wrong done to the defendant by the deceased, at
the time of the killing, cannot be murder in the first degree unless coupled with
something said or act done by the defendant at the time, before or after the killing, tending
to show malice as defined by the statute. Fifth. In impeaching a witness by proving his
bad character for truth and veracity, such character must be notorious in his
neighborhood, and while the proof may be made by one witness, still, in weighing the
evidence, the production of one witness would not ordinarily be satisfactory. So, in proving that his
character is good for the same, it should be notoriously good in the
neighborhood, and one or two witnesses to that fact will not ordinarily suffice." "These charges are refused because, so far
as they are correct legal propositions, and so far as the facts require the application,
they are embraced in the charge of the court. L. W. MOORE, Judge." "If the jury believe from the evidence that
there has been no malice proven, either express or implied, they cannot convict the defendant of murder
in the first degree. Where the fact of the killing has been clearly
shown, and that it was done under such circumstances as in law will mitigate, excuse or
justify the act, the law in such cases implies malice, and makes the killing
murder, but it would be murder of the second degree." "Refused because embraced in the charge of
the court. L. W. MOORE, Judge." The motion for new trial embraced the questions
involved in the opinion?? Where an absent witness is expected to prove
statements made by defendant himself, his motion for continuance must show that they
are part of the res gestae, or that the testimony is competent for some other reason. An application for a continuance because an
attached witness had been released, without defendant's authority, eight days before
the case was reached for trial, was properly refused where it failed to show
that he did not learn such fact in time to have secured the witness by the service of a new
process. On a trial for murder, it was not error to
refuse to grant the defense time to take down the testimony. Newly discovered evidence as cause for a new
trial is not sufficient when its materiality, probable truth, and exculpatory nature are not made
manifest. An exception that "the court erred in the
charge" is too vague to invoke a revision of the charge given by the trial court, but in
felony cases it is the practice on appeal to revise the instructions given to the jury. In a criminal prosecution for homicide the
defense reserved exceptions on the ground that during the progress of the trial the judge
absented himself from the bench and court room without notice to counsel and that
during his absence the state's counsel proceeded with the examination of a state's
witness and when the defense objected to the manner of interrogation there was no judge
present to sustain or overrule the objection and illegal and damaging evidence went to the jury. But
the judge's explanation states that his absence was very
brief and of necessity and he supposed the counsel had taken notice of it;
that counsel for the defense did not complain of any evidence introduced during
the interval but said he had objected to some testimony and counsel for both
sides said they were awaiting the judge's return and the defendant's objection
to the testimony was then presented. Held, that the bill of exceptions was defective because
it did not disclose what the illegal testimony was. In a prosecution for homicide the defense
reserved an exception because the trial court refused to admit evidence of the
magistrate who held an inquest on the body of the decedent, in the absence of "the papers."
The bill of exceptions failed to show what "papers" it referred to and
the trial court received the evidence of the magistrate except with regard to the loss of the
record of the inquest and the state admitted the loss of that record and conceded
the right of the defense to prove its contents. Held, no error was apparent. That a defendant's challenge for cause was
improperly overruled, and he was thereby forced to the peremptory challenge of a
disqualified juror, is not error of which he can complain unless he exhausted his peremptory
challenges before a full jury was obtained. Where one, with a sedate and deliberate mind and
formed design, kills another, there is express malice, although the design is formed
immediately before the killing. Murder in the first degree can be perpetrated by
other means than those specified in Pen.Code, art. 606 [Vernon's Ann.P.C.
art. 1257], and the express malice which characterizes it may be evidenced by other
external circumstances besides lying in wait, antecedent menaces, former grudges and
concocted schemes, and even in a sudden difficulty homicide may be committed
under circumstances of such enormity, cruelty or deliberate malignity as will suffice
to show that it was done with express malice and is murder in the first degree. Evidence held to sustain conviction of first
degree murder. In a prosecution, tried in 1882, for homicide
committed in 1879, testimony of a witness for the state relating to the homicide
in question, the date of which was fully proved by other witnesses, was competent,
although the witness was unable to give the year in which the killing occurred. A. S. Chevalier, filed
an able brief for the appellant. J. H. Burts, Assistant
Attorney General, for the State. HURT, JUDGE. The appellant, Sam Lewis, was indicted for the
murder of William Finkelstien, a peddler, on the twenty-first of October, 1879. He was tried and
convicted of murder in the first degree; his punishment being
assessed at confinement in the penitentiary for life. From this judgment and sentence he appeals and
relies upon a number of assignments of error. His first error is the action of the court in
overruling defendant's motion to quash the venire upon the ground of the
insufficiency of the return of the sheriff touching his diligence to find and summon certain veniremen. In regard to the jurors not summoned the return of the sheriff is as
follows: "And the following named persons whose names appear upon said venire were
not summoned for the following reasons, to-wit: F. Kendel, W. Carles, C. H. Burns, D. P. Croft, John Burk and W. S. Lane, are all out of Fayette county, and could
not be found in said county although diligent search was made for them by the sheriff
of Fayette county and his deputies; and H. C. Gerdes, John
Frierson, A. Groos, W. Dick, August Mischer and N. M. Cockrell were not found in Fayette county although diligent search was
made for them at their residences and places of business, and at any
point at which they were likely to be found by the sheriff of said Fayette county and his
deputies." Article 614, Code Criminal Procedure requires the diligence to be
stated. This return, we think, fully complies with the Code, and, if true, great pains was taken to
summon these jurors. *9 By the second assignment it is insisted that
the court erred in overruling defendant's motion for continuance. Jack Lewis, of Colorado county, S. Smith, of
Bastrop, and Handy Holman, of Fayette, were the witnesses desired. Lewis was attached by the sheriff
of Colorado county, and was released by the order of John Mitchell,
Esq., on the fifteenth day of November, 1882. Defendant in his motion states that
Mitchell was not an attorney in the case, and that he was not authorized to release this witness
Lewis. This may be true. The question, however, is one of diligence. Lewis was discharged on
the fifteenth day of November, and the cause was not reached or
called for trial until the twenty-third of that month. We are not informed by defendant's motion at
what time he learned that Lewis had been released from the attachment. It
may have been the same or the next day, leaving ample time for another attachment
to have been issued, served and the attendance of the witness secured. Again, the evidence of said witness Lewis is not
shown to be competent. In his motion defendant says "that he expects to prove by
said witness that affiant told witness, after the murder, * * that he did not intentionally
kill deceased, but deceased struck him over the head with a buggy whip, and he
returned the blow with no intention of killing the deceased." That "affiant told
witness," etc. When and where did he tell the witness? To be admissible, the statement of affiant (the
defendant) must have been res gestae, and all of the facts and
circumstances, the time and place, must be stated, which are necessary to show that, in fact, his
statement was res gestae. By the next witness the defendant expected to
prove "that there existed in the county so great a prejudice against defendant that he
could not obtain a fair and impartial trial in said county; that he is a material witness on a
motion for change of venue. A sufficient answer to this is that there was no
motion made for a change of venue. If defendant had filed his motion for that
purpose, and desired witnesses to establish his right to a change, the court no doubt would
have caused proper process to be issued, and would have given defendant time to
assert his right in regard to this motion. But, as there was no effort made to assert his right to
a change of venue, we presume the defendant abandoned this purpose. The other witness is Henry Smith. By this
witness defendant expects to prove "that Holman (a very important witness for the State)
before the jury of inquest did not swear that affiant laughed when he saw that deceased was
dying." It is not stated in the motion for continuance that Holman said anything
upon this subject at all. His attention was not called to this matter, nor
does it appear (from the motion) that the negative of what the witness swore on
the trial was even so much as hinted at in his testimony before the inquest. *10 That a witness fails to state everything
that was done and said by the parties at the time of the occurrence of the facts to which he
swears is not a contradiction. To be such, he must make a statement in regard
to the fact. If he omits a fact, his attention should be drawn to it, or, if he
is asked if what he has stated was all that was said by the party or parties, and
he answers in the affirmative, and upon the trial he embraces other facts, in his
evidence, than those related by him before the inquest, the defendant would have the right
to show this. This, however, is not the state of the question in the case in hand.
As presented to us by the record, Holman simply testified to
some facts which were omitted in his evidence before the inquest, and these not in
conflict but harmonious with his evidence there given. The court did not err in overruling the motion
for continuance. It is assigned as error that the court erred in
holding the juror Zreemer competent. This juror was challenged peremptorily, and the
defendant did not exhaust his challenges. It is now settled by this court that, to
complain of the action of the court in erroneously holding a juror competent, the
defendant must exhaust his peremptory challenges. We are of the opinion, however, that the juror was
impartial and competent. The juror stated that when he heard of the killing
"he said the defendant ought not to have killed the deceased, but that
he had formed no opinion, nor then had any opinion about the case." Fourth assignment is "that the court erred
in permitting Nat. Holman, a witness for the State, but one who was not present at the
killing, to give his opinion of the manner in which the blow was struck, and the
relative position of the parties, when the State had failed to show witness to be an expert in such
matters." Holman described the wound minutely, and the shovel
(the weapon used), and then gave his opinion that, "if the wound inflicted on Finkelstien was made with the shovel, he must have been hit with the eye of it; no other
part of the shovel could make the same kind of a wound as was on him." This evidence, to
wit, the witness's opinion, was not competent. But was the defendant injured by it? We
think not. The wound was of that character, taken in connection with the
formation of the shovel, as to place it beyond cavil that, if inflicted with the
shovel, it must have been with that part known as the eye. This opinion of the witness was
perfectly patent, and, whether expressed or not, the jury would have irresistibly reached the
same conclusion. If the State had been seeking to identify the weapon
with which the blow was inflicted, by this evidence, we would hesitate before sanctioning such
means. This, however, was not the case, there being an eye witness to the fact
that the blow was inflicted with the shovel. 5. "During the progress of the trial the
honorable judge absented himself from the court room, and remained outside without notifying counsel.
The counsel for State continued to examine his witness in the absence
of the court, and when counsel for the defense arose to object to his manner of
interrogating the witness, no court was present to sustain or overrule the objection to
the evidence, and during this interval illegal and damaging evidence to the defense went to the
jury." The record informs us "that the presiding judge retired under a
call of nature for a brief minute, supposing the counsel would take notice thereof. Counsel for defendant
did not complain of any testimony introduced in his absence, but stated
that he had offered objections to some testimony, and that counsel for both parties
said they waited his return and then presented the objection to the testimony." *11 In the first place, we are not informed of
what the illegal and damaging testimony complained of by defendant consisted. This is fatal to the bill of
exceptions. Again , the momentary absence of the presiding judge
during the examination of a witness, under the circumstances mentioned in the record,
will not of itself justify this court in reversing the judgment. If illegal or improper evidence
had been introduced by the State, over objection of defendant, during
this absence, a motion to exclude would have resulted to his relief against such evidence. But we
cannot hold the opinion of counsel that there was illegal evidence
admitted; the facts must be set out that this court may pass upon their illegality. Notwithstanding the very
high respect in which the counsel for defendant is held by this court,
we must be permitted to say that we view this whole matter as frivolous. Sixth assignment: "The court erred in
admitting the evidence of Holman (a witness for the State) as to the murder, when the said
witness knew nothing about the date of the killing, not even being able to give the year of the
killing." The date of the killing was very clearly proven by other witnesses. The witness
Holman referred to the same homicide. That he failed to remember the year is no objection to
the competency of his evidence. 6 1/2. "The court refused to grant the
defendant time to take down the testimony." In this there was no error. 7. The court refused to give any of the charges
asked by the defendant. The proper charges requested were embraced in the charge of the court. The
other charges refused were without facts, or were upon the weight of
the evidence, and were properly refused. 7 1/2. "The court refused to admit the
evidence of T. W. Smith, the justice of the peace who sat on the inquest held over the body
of the deceased in 1879, in the absence of the papers." What papers? We may presume that
the testimony taken before the jury of inquest was reduced to writing. But certainly
bills of exception should be more specific. What facts did defendant propose to prove
by this witness? We know not. Were they competent and beneficial to the defendant?
Here again we need light. But the explanation of the learned judge, we
think, shows, that there is nothing whatever in this billl. We are informed
by the record that the State admitted the loss of the papers, and offered to permit any
testimony showing their contents, and that the loss was known upon a former trial, and
it was only as to the loss of the papers that the court would not hear further testimony by
Smith. What necessity was there for any proof of the loss of these papers
by Smith or any other witness, when their loss was an admitted fact? 8. The court gave verbal instructions to the
jury, to wit: "that they should not cast lots in coming to a verdict." In this there was no
error. 9. "The court erred in the charge."
The bill of exceptions points out no error in the charge. However, this being a felony, the charge of the court
has been thoroughly examined, and we find that the law applicable to
the case made by the evidence was fully and clearly given in charge to the jury. *12 10. "The court erred in refusing to
grant a new trial in the case, on the grounds set forth in the motion of defendant therefor." In
addition to some of the matters already mentioned, the motion for new trial
contained two others: 1, newly discovered evidence; 2, that the verdict of the jury is
contrary to and not supported by the evidence. This newly discovered evidence consists of the facts set
forth in the affidavit of B. D. Shropshire,
Esq., in regard to those lost papers, already mentioned in this opinion. Neither the motion for new trial nor the affidavit of Shropshire indicates that a material fact, beneficial to the
defendant, could be established by those papers, if found. The motion seeks a new trial upon the ground that
there is a probability of finding those papers. Suppose they should be found, how
would defendant be benefitted by them? To authorize a new trial upon this ground, this
must be shown in such clear light as to place it beyond doubt. To be explicit:
1. The newly discovered evidence must be made to appear material. 2. Not in conflict to
such extent as to render its truth improbable. 3. It must be beneficial,
exculpatory, in its nature. Appellant being convicted of murder of the first
degree, it is urgently insisted by his learned counsel that the evidence fails to
support the verdict finding him guilty of that offense; and it is very plausibly argued
by counsel that, as there was no proof that defendant took the life of deceased
by starving, torture, etc., or by lying in wait, or that he had threatened to kill him,
or entertained grudges against him, or had concocted schemes to do him bodily harm,
that, therefore, there was no proof of express malice. In this we cannot agree with counsel for
defendant. Express malice is where one with a sedate and
deliberate mind and formed design kills another; and this formed design is evidenced,
proven, by external circumstances discovering that inward intention; and this
formed design, inward intention, is discovered, made manifest, by such external
circumstances as taking life by starving, torture, etc., or by lying in wait, or
antecedent menaces, former grudges and concocted schemes to do bodily harm. These are illustrations of the
external circumstances which discover the formed design, the inward
intention, but they do not exhaust the whole field of facts and circumstances by which the
formed design, the inward intention, may be discovered. If it is shown by any fact or circumstances--is
made manifest--that one with a sedate and deliberate mind and formed design, kills
another, the killing would be upon express malice, and these external circumstances
discovering the formed design may transpire at the time of the killing, as well as before. "For
though the killing be upon a sudden difficulty, it may be attended with such
circumstances of enormity, cruelty, deliberate malignity, cool calculating compassings,
or even calm demeanor and absence of passion, as will be sufficient evidence to establish the
inference that the killing was the result of a sedate, deliberate mind and formed design
to take life or do some great bodily harm. Acts and admissions or other language of the prisoner,
even after the mortal stroke or killing, may often be pertinent
evidence as tending to show express malice at the time of the killing." The last two rules apply
with great force to the facts in this case. *13 (The Reporters will give the statement of
facts, charge of the court, and the refused charge.) We are of the opinion that the evidence supports
the verdict. We have given every question raised by the record and brief of
counsel our most careful consideration, such consideration as the gravity of the case
demands, and have not discovered an error in the record such as will warrant a reversal of the
judgment. The judgment is affirmed. Affirmed. Tex.Ct.App. 1883. SAM LEWIS v. THE STATE. 15 Tex.App. 647, 1883 WL 9007 (Tex.Ct.App.) END OF DOCUMENT |
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