SHAW v. THE STATE

1. Continuance — Diligence.

A total want of diligence is manifest in an application for continuance, where the absent witnesses resided out of the county and process for them was not sued out until the lapse of six weeks after defendant's arrest under the indictment.

2. Same.

To entitle a defendant to a continuance for absent witnesses who have been served, but are absent when the case is called for trial, it must be made to appear that, upon his ascertaining that they were not present, he immediately sued out additional process to secure their attendance during the trial.

3. Same.

A continuance will be held properly refused where the facts show that the proposed witness was absent from the locus a quo a distance of some seventeen or eighteen miles, and could not have seen what it was proposed to prove by him.

4. Same.

A continuance will be held properly refused where the proposed testimony of the absent witness would in no manner be inconsistent with the State's case nor the guilt of the accused.

5. Same — To Impeach Witness for Truth and Veracity.

A continuance will not ordinarily be granted for character witnesses; and in no case will it be granted to impeach a State's witness for truth and veracity by a single witness who lived in a distant county.

6. Same — Irrelevant Testimony.

On a trial for murder, it will be held that an application for continuance for a witness to prove that the day before the alleged murder defendant killed a beef, and there was blood on his pants, was properly overruled, the testimony being wholly irrelevant and immaterial, in view of the fact that the State offered no testimony of blood stains on the clothing of defendant.

7. Same.

An application for continuance for a witness to prove that he saw tracks made by a number 9 or 10 shoe near the dead body, presents irrelevant and immaterial testimony where the numbers of the shoes or boots worn by the defendant were not shown or sought to be established by any evidence in the case, or where such testimony would only harmonize with the State's testimony upon said matter.

8. Same — To Impeach a Witness.

A continuance will not ordinarily be granted for testimony to impeach a witness.

9. Same.

A continuance will not be granted for testimony which is not material.

10. Severance of Defendants — Right to.

The provisions of article 707, Code of Criminal Procedure, with regard to the right of joint defendants, or defendants separately indicted for the same offense, if complied with by filing a proper affidavit for the severance, are mandatory, and it is no valid objection to, nor can the severance asked for by a defendant be defeated by a statement of the prosecuting attorney that he proposes to use such other defendant, who is asked to be first tried, as a witness against the defendant seeking the severance.

11. Refusal of Severance — Harmless Error, When.

An erroneous ruling in refusing a severance is harmless error where the record shows that subsequent to the ruling the defendant, for whose testimony the severance was sought, was tried and convicted for the same crime at the same term of the court, and that he had accepted his sentence and declined to appeal therefrom. And held, a reversal of the judgment on account of the erroneous ruling, under the facts stated, could in no event benefit the defendant, inasmuch as he could never avail himself of the testimony of such convicted codefendant.

12. Severance — Affidavit for.

The statute providing for a severance of defendants requires the defendant seeking the severance to state in his affidavit positively that the testimony of his codefendant is material to his defense; and an affidavit which states that he believes the testimony of his codefendant would be material to his defense is insufficient.

13. Murder — Evidence — Harmless Error.

On a trial for murder, admitted evidence of the finding of a pair of boots in a barn some time after the homicide, though irrelevant, is harmless error where the guilt of defendant is otherwise established beyond any question.

14. Same — Irregular Procedure.

On a trial for murder, certain witnesses while testifying were requested to look out of the courthouse window, and were permitted to state that they saw three horses hitched outside near by which they recognized as the horses whose tracks they had measured and compared at the scene of the killing. Held, while the proceeding was irregular, the error was harmless.

15. Murder in the First Degree — Evidence Sufficient.

See the opinion for a condensed but vivid summary of facts which the court hold amply sufficient to support a verdict and judgment for murder in the first degree, inflicting the death penalty.

HURT, PRESIDING JUDGE.

Appellant was convicted of murder in the first degree, and his punishment assessed at death; hence this appeal.

Appellant presented a motion for a continuance on account of the absence of the following witnesses: Walter Nobles, Mrs. Bill Masengale, Mrs. Short Calahan, Mary Fitzgerald, all of whom were alleged to reside in Johnson County; and Bob Gipson and Mrs. Bob Gipson, residents of Hill County; and George Ginn, a resident of Williamson County. The indictment was returned on the 18th of November, 1897. Appellant was then under arrest. Process was only issued for the witness Gipson on the 31st day of December, 1897, and was returned into court on the 3d of January, 1898, the day set for the trial of the case. The return showed that these witnesses could not be found in Hill County. No excuse is shown for not having the process issued earlier, but appellant allowed about six weeks to elapse after his arrest under the indictment before the use of any diligence to secure these witnesses. If they were in Hill County, the use of proper diligence might have secured their attendance, or, if not, the process could have been returned, and appellant would then have had time to have informed himself as to the whereabouts of said witnesses, and procure, process to such county for them. Process for the witness Ginn was not issued until the 1st of January, and the application showed that it had not been returned at the time the case was called for trial. No excuse is shown for the failure to sue out this process earlier. It is not shown when the process was issued for the witnesses who resided in Johnson County, nor is it shown when the was returned. It was shown that they were served, but were absent when the case was called for trial. Appellant should have immediately sued out additional process, and by this means he might have secured their attendance at the trial. We do not believe the diligence used for any of said witnesses was sufficient.

It is alleged that appellant expected to prove by the witnesses Gipson that they saw one A.R. Ginn riding in company with Lee Wilson in Clem Pierce's pasture, between 9 and 10 o'clock on the day of the homicide, and that appellant was not in company with said parties, and further expected to prove by them that said parties owned horses shod with a "cork shoe" on one foot and a smooth shoe on the other. This statement is couched in very general terms. There were several pastures belonging to Clem Pierce, and it is not stated in which pasture they were. The State's proof showed that the homicide occurred in the jungle pasture, and the proof is beyond any question that Ginn left the ranch about 8 o'clock, in a wagon containing some beef, en route to Cleburne, some seventeen or eighteen miles northeast. This was not only sworn to by Ginn, but by Mrs. Crane. There is also testimony of other witnesses showing that he reached Cleburne about 12 o'clock that day, and remained there the balance of the day and night, returning to Clem Pierce's pasture the next day. The fact that said parties may have owned horses shod with a cork shoe on one foot and a smooth shoe on the other, does not, in the light of the State's testimony, signify anything. If it be conceded that the statement bore shows a horse shod similar to the tracks of the one found in the pasture, then it is entirely consistent with the State's case; for, unquestionably, Lee Wilson was in the Jungle pasture on that day, and participated in the homicide, and either he or appellant rode a horse shod in that manner.

As to the testimony of George Ginn, by whom it was expected to prove the bad character of A.R. Ginn, the State's witness, for truth, it is sufficient to say that a continuance will not ordinarily be granted for character witnesses. No evidence as to this matter was offered at all by the appellant, though the witness had lived in that neighborhood for some time. If his reputation was bad, it is singular that but one witness existed by whom such fact could be proved, and that he lived in a distant county.

As to the testimony of Mrs. Masengale, her evidence would not have been relevant, as the State offered no testimony of blood stains on the clothing of appellant.

Nor would the testimony of Nobles have been relevant. The fact that he saw tracks apparently made by a No. 9 or 10 shoe near where the dead body was found would harmonize with the State's testimony. Moreover, the State made no issue as to this matter. The number of the boots or shoes worn by the appellant Wilson was not shown by any evidence.

Appellant stated that he expected to prove by Mrs. Fitzgerald that Mrs. Crane told her at some time (though the time is not stated) that on the day of the homicide appellant was absent from the house but a short time. This statement does not raise any, issue. The length of time is not stated. The fact is that, when we look at the record in this case, the surprise is that he was absent from the house on that day such a short time to have committed the homicide in the manner it is shown to have been accomplished. At the most, this was merely impeaching evidence, and a continuance will not ordinarily be granted for this character of testimony.

We have carefully examined the application for a continuance, and, in our opinion, it does not show diligence; nor, when taken in connection with the testimony adduced, does it appear to us to show that, the absent testimony was material, and the court did not err in overruling the application for a continuance.

Appellant made a motion for a, severance between himself and one Lee Wilson, who he alleged was indicted for the same offense. We quote said motion as follows: "Now, at this time, comes John B. Shaw, defendant in the above entitled cause, and files this his affidavit in writing, and states to the court that one Lee Wilson is indicted for the crime of murder, which is the same offense charged against this defendant, by a separate indictment in this court, and that said defendant believes that the evidence of the said Lee Wilson is material to his defense, and that affiant verily believes that there is not sufficient evidence against the said Lee Wilson to secure his conviction," etc. The court overruled this application, and appended thereto the following explanation, to wit: "That, when the motion to place Lee Wilson on trial was first made by the defendant Shaw, said Wilson's attorneys objected, and asked that they have time to file a motion to first put Shaw on trial, and, while they were preparing said motion, the prosecuting attorney (Odell) stated to the court that the State would use Wilson as a witness. The court then overruled the defendant Shaw's motion to have Wilson first tried, and Wilson was used as a witness by the State, and was afterwards (at the present term) tried and convicted, and has not appealed from a verdict of murder in the first degree and life sentence. To all of this, appellant reserved his bill of exceptions, and has assigned this action of the court as error." If Wilson had prepared a counter-affidavit, requesting the court to first try appellant, in order that he might avail himself of his testimony, under article 707, Code of Criminal Procedure, then it would have been optional with the judge to have made his selection as to whom he would first place on trial. But this was not done. Instead thereof, the motion was overruled on the assurance of the district attorney that he would place Wilson on the stand as a witness for the State. Under the statute, which has been held mandatory (see King v. State, 35 Texas Criminal Reports, 472; Willey v. State, 22 Texas Criminal Appeals, 408), appellant had the right to insist upon. Wilson being tried first, be making the proper affidavit for that purpose. It was no response to his motion that Wilson would be placed on the stand as a witness. He had a right to have Wilson tried first, and, if acquitted, he might use him as a witness, unburdened by the pending prosecution against him, — a right for him to testify as any other citizen, free from the particular charge, he being acquitted thereof, and not testify under a cloud, and perhaps believing that, by testifying strongly against the appellant it would go easier with him in his case. But concede that there was error in overruling the motion to sever, still, we can not imagine, under the facts of this case, how a reversal upon that ground should be awarded appellant. The explanation to the bill shows that Lee Wilson was tried at that term of the court, convicted of murder in the first degree, and sentenced to the penitentiary for life, without any appeal. Now, if we should reverse the judgment, it is evident that the appellant could never use Wilson as a witness. Again, if we look to the record, eliminating Wilson's own testimony, we are firmly convinced that if he had been placed on trial first, according to the request of the appellant, he would have been convicted, and appellant would never had secured his testimony in any shape. So it occurs to us that the application here made was not made in good faith to secure the testimony of this witness, but was made for the sinister purpose of depriving the State of the use of his testimony on the trial by conviction; and we do not understand the statute to mean this. We would not be understood as holding that, when the statute is complied with, the court has any option in the matter, but it is the court's duty to grant the severance; but we do hold that, whatever may have been the error of the court below in refusing the severence, a reversal of this case on that account can be of no possible benefit to the appellant, as he can never avail himself of the testimony of his codefendant. We would further observe in this connection that, while a severance under this article is a matter of right, the statute should be strictly complied with. The statute requires appellant to state in his affidavit, as a matter of positive averment, that the testimony of his codefendant will be material to his defense. This was not done. The affidavit merely stated that he believed the testimony of said Wilson would be material to his defense.

Appellant assigns as error the action of the court in admitting certain testimony as to the finding of a pair of boots at the barn of Clem Pierce, near his residence in Cleburne, some time after the alleged homicide. While an objection to this testimony should have been sustained, as its relevancy nowhere appears, still we fail to see how it could possibly have affected the defendant injuriously.

Appellant also objected to certain witnesses, while on the stand, at the request of the district attorney, going to the window and looking out, stating that they recognized the three horses said to have been ridden by the parties at the time of the homicide. And in that connection it is stated that some of the jury could also look out of the window, and see the horses. These horses were thoroughly identified by other witnesses as being the horses ridden by the parties at the time of the homicide. It may have been somewhat irregular for the witnesses to testify in the manner they did, that they saw certain horses hitched in the courthouse yard, which they identified as being the horses whose tracks they had previously measured, and compared. But we make the same observation with reference to this matter as above, — that we fail to see how the testimony could work any injury to the appellant. The mere fact that they saw certain horses within view, and recognized them as the horses whose tracks they had measured and compared, was harmless.

We have carefully examined the record, and it establishes the guilt of the defendant beyond any question. Lee Wilson, the accomplice, testified positively and directly to the facts attending the killing, and even if we eliminate his testimony, and consider the case solely upon the circumstantial evidence, the guilt of the defendant is established with that degree of certaintly required by the rules regulating that character of testimony. The circumstances inherently leave no hypothesis consistent with appellant's innocence, but show conclusively and to a moral certainty that appellant, with his companion Lee Wilson, and no other persons, committed the murder. The record before us shows a most atrocious murder, rarely equaled in the annals of any country. The only motive assigned is that appellant coveted the wife of Crane, the deceased. He was the manager of Pierce's ranch; and the deceased, his wife, and three small children were living on the premises, the appellant boarding with them. According to his own account, he was having a liaison with Mrs. Crane, but, not content with this, sought to have her entirely to himself by putting her husband out of the way. We gather from the testimony that he had been brooding over this matter for some time, for evidently Lee Wilson came to the ranch, stayed all night on the 1st of November, to be in readiness on the morning of the 2d, in pursuance of a conspiracy. Wilson went to the woods, and stationed himself, while appellant hied to the field, where the deceased was engaged in picking cotton, and there decoyed or forced him to mount, his horse, and accompany him to the point where Wilson was in waiting. There these parties, armed, forced the deceased to go into a thickly wooded pasture (as significant of its character, it is called the "Jungle pasture"); and thence the testimony shows that they forced him along the canyon, and to a remote and thicketed portion of the same. En route, appellant cursed and abused him, and told him that he intended to kill him. Twice deceased attempted to escape, but they pursued and overtook him. Appellant shot him in the back. He fell from his horse. The parties got down and put him on his horse again; and, when he had proceeded into a dense thicket, appellant again shot him twice with his Winchester. Not content with this, after he had fallen upon the ground, he broke his skull in five or six places with his gun. The parties then separated, Wilson taking a circuitous route back to Cleburne, and appellant returning to the home of the deceased, and then coolly sitting down with the family, and eating dinner. As stated above, few cases equal this in horror, and none surpass it. King David, when he sacrificed Uriah, in order to possess himself of his wife, placed him in the front of the battle. He was armed, and had some chance for his life; and, if he fell, he would at least perish honorably, in the defense of his country. But here, instigated by the same character of motive, appellant gave his victim no opportunity whatever. He forced or decoyed him from his labor in the field into the jungle, there not to engage in equal combat, but re-enforced by another, with gun or pistol, set upon and shot him to death, unarmed and helpless, and while fleeing for his life. In our opinion, no punishment can be too severe for one who, after having claimed to have debauched the wife, decoys her husband into a jungle, and murders him in the brutal and cowardly manner disclosed in this record. The jury simply did their duty in visiting upon him the highest penalty of the law. We find no error in the record requiring a reversal of the judgment, and it is accordingly affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]