Wyres v. State

HARPER, Judge. Appellant was prosecuted and convicted of murder, and his punishment assessed at death. The first ground relied on is that the court erred in not sustaining the application for a change of venue in this case. Article 634 of the Code of Criminal Procedure reads: “The order of the judge granting or refusing a change of venue shall not be revised on appeal unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of court at which the order was made.” The term of court at which appellant was tried adjourned July 26th. The bill of exceptions was not filed until August 1st. Under the plain mandates of the law, we are not authorized to review the action of the court, the bill not being filed within the time required by law; but if we did do so, the evidence would not show that the court abused his discretion in refusing to change the venue. Adams v. State, 35 Texas Crim. Rep., 285; Kutch v. State, 32 Texas Crim. Rep., 184; Smith v. State, 31 Texas Crim. Rep., 14. Appellant also complains that the court erred in not sustaining his challenge for cause to Messrs. Roscoe Fortune, J. T. Allen, Wilmer McKea, B. F. Bruner and J. E. Buck. These men answered that from reading newspapers and from reports that they had an opinion in this case, but each answered that it was not such opinion as would influence their action in finding a verdict. They further testified they had talked with no witness in the case, and had not seen any of the evidence published. Heither one of these men served on the jury, but were peremptorily challenged by appellant. Under such circumstances this bill presents no error. Subdiv. 13 of art. 692; Sawyer v. State, 39 Texas Crim. Rep., 557; Miller v. State, 32 Texas Crim. Rep., 319; Suit v. State, 30 Texas Crim. App., 319. In the next bill it is shown that after appellant had exhausted his challenges, T. E. Cypert, a talesman, was called to be examined as a juror in said cause, whereupon the defendant through his counsel advised the court that he had exhausted all his peremptory challenges, and that this juror, towit, T. E. Cypert, was an objectionable juror to him; and asked the court to require him to stand aside, which the court refused to do and after the State had accepted said juror, ordered said juror sworn as a member of the jury of said cause, to which action of the court the defendant then and there excepted. It is not contended that Mr. Cypert had formed an opinion from hearsay or otherwise, and the record does not disclose that he had ever heard of the case until *31 summoned on the venire. Just the bare statement that the juror was objectionable would be no ground, without stating or in some way showing why said juror was an objectionable juror. In qualifying the bill the court states this juror was not challenged by appellant. Under no phase would the action of the court in this matter present error.' Sheriff M. J. Poole was introduced as a witness for the State, and on cross-examination by appellant’s counsel he was asked if he did not search for the head of deceased, that had been severed from the body, on Saturday night and Sunday, and if he did not find it Sunday evening, and when he answered in the affirmative, he was asked: “Did you get any information from anybody as to where the head was? A. Yes, sir. Q. Who gave you the information ? A. Bounce Baty. Q. He told you where it was? A. Yes, sir. Q. You didn’t see Buss Wyres that •night? A. Ho, sir.” The record discloses that appellant, Bounce Baty and another were indicted, charged with the murder of John Bichey. These questions were propounded and answers elicited by appellant in an effort to show that Bounce Baty had killed Bichey, cut off his head, and threw it in the creek. On redirect examination the court permitted the State to prove by Mr. Poole that when Bounce Baty told him where the head was,, he said that appellant threw it in the water where he had told the sheriff he would find the head, and where he did find it. As appellant first elicited a part of this conversation in an effort to show that Bounce Baty did the killing and threw the head of deceased in the water, then it was permissible to show that the conversation as a whole would not bear such construction. Having elicited the part of the conversation he did, there was no error in permitting the State to elicit the remainder of what was said by Baty at this time, as it was clearly necessary to render intelligible and plain that part appellant had introduced. Art. 811, 0. C. P.; Carter v. State, 59 Texas Crim. Rep., 73, 127 S. W. Rep., 215; Spearman V. State, 34 Texas Crim. Rep., 279. After the State had introduced this testimony, the defendant then offered to prove by John Hughes and Guadalupe Gonzales that after appellant, Bounce Baty and Dud Beed had been indicted, charged with this murder, and while they were all in jail, that Hughes and Gonzales had heard Bounce Baty say that he, “Bounce Baty had killed John Bichey and cut his damned head off, and that no one else had anything to do with it.” Bounce Baty was at this time under arrest and in jail under indictment charged with this offense, and he was not a competent witness to testify to these matters for appellant, and as he himself could not so testify, such statements would not become evidence by him stating it to third parties. An unsworn statement made in jail at the time he was an incompetent witness, would not be admissible in evidence when his sworn testimony would not be admissiblé. Art. 791, 0. C. P.; Blain v. State, 24 Texas Crim. App., 626; Smith v. State, 41 Texas, 352. In Long v. State, 10 Texas Crim. App., 186, Judge White tersely states *32 the rule to be, “If one can not testify in person, how can he state facts to others and thereby enable them to testify to matters wholly derived from him ? To permit this would be to abrogate the law which renders him incompetent to testify. No fact stated by or derived from him can, so long as the disability remains, be detailed as testimony by another or used as evidence.” See, also, Gayle v. Bishop, 14 Ala., 552; Walker v. State, 39 Ark., 221; People v. Quong Nun, 68 N. Y., 139; State v. Williams, 67 N. C., 12; Hambeck v. State, 35 Ohio, 277; Nettles v. Harrison, 2 McCord, 230; Queen v. Neale, 2 Cranch, C. C., 3; 1 Phil. on Ev., 5; 1 Rus. on Crimes, 695; 1 Chit. Crim. Law, 190; Starkie on Ev., 117; People v. McGee, 1 Denio, 471. The State called Bounce Baty as a witness, when he, through his counsel, claimed his privilege of not being required to testify, as he was under indictment charged with the same offense. He.was a competent witness for the State under our statutes had he been willing to testify, but when he claimed his privilege, the court promptly sustained it. There was no error in this proceeding, and in no way could it injure appellant. He by his testimony was contending that Bounce Baty raid Dud Reed had committed the murder, in which he in no way participated, and when Bounce Baty claimed that his testimony might tend to incriminate him, Baty, this, if anything, would have a tendency to sustain the contention of appellant, and in nowise would it tend to show his, appellant’s, guilt. Nor was there any error in not charging on accomplice testimony. When Baty was called he testified to no fact; in fact declined to testify; that the defendant had elicited from the sheriff that it was through information received from Baty he had found the severed head, and testified that at the same time Baty told the sheriff appellant had placed it at this place, did not call for a charge on accomplice testimony. Gracy v. State, 57 Texas Crim. Rep., 68, 121 S. W. Rep., 705. As the defendant answered the question in the negative, propounded to him by the State, to which appellant objected, no harm could result therefrom, even if it had been an improper question. We do not think what his mother may have said and done would have been admissible against appellant, and had the question been answered other than in the negative, error might be presented, but the question in and of itself was not of a harmful nature, when he answered, no, and no effort was made to follow the question with any other or different proof. We have carefully reviewed each ground in the motion for new trial, and think the charge of the court not subject to the criticisms therein contained. The evidence offered in behalf of the State would justify a finding that deceased was killed by appellant, Baty and Reed, and his head severed from his body and thrown in the creek; that each of them was present, and knowing the unlawful intent participated therein, therefore, there was no error in the court defining who are principals in the commission of an offense, and submitting that issue to the jury. No *33 special charges were requested, and every phase of the case was included in the court’s charge, and in a manner extremely fair to appellant. The judgment is affirmed. Affirmed.