Noftsinger v. State

White, P. J. On the night of the 7th of August, 1878, one Willis Cline was assassinated, between the hours often and eleven', at his home, four miles north of the village of Dexter in Cooke County. At the time he was murdered, he and his wife,.to whom he had been married but little over a month, were asleep upon the porch upon the north side of the house. On the following morning appellant and one E. S. Gardner were arrested as the perpetrators of the deed, and each was separately indicted for the murder at the February term, 1879, of the District Court. At the August term, 1879, this appellant was tried and found guilty, and his punishment affixed at death by hanging. A noticeable feature is presented by the record in this case. Between the date of the filing of the indictment and the time of trial, to wit, on the twenty-fourth day of July, 1879, our Revised Penal Code had become operative, and by its express provisions the punishment for murder in the first degree was changed from death absolutely, as provided in the old law (Pasc. Dig., art. 2271), to death or confinement in the penitentiary for life. Rev. Stats., Penal Code, art 609. By art. 15, chap. 1, of the Penal Code it is declared that “ when the penalty for an offence is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed — 321 — before the second shall have taken effect. In every such case the offender shall be tried under the law in force when the offence was committed, and, if convicted, punished under that law : except that when by the provisions of the second law the punishment of the offence is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offence was committed.” In pursuance of this provision, defendant on his trial moved the court in writing to permit him to elect to receive the punishment fixed by the law in force at the time the crime was alleged to have been committed ; that if convicted he did not desire to receive the punishment fixed by the law now in force. His motion was granted by the court, and the jury were appropriately charged with regard to the punishment under the old law. The case is one of entirely circumstantial evidence. Two bills of exception are found incorporated in the record, which are mainly relied on as cause for reversal in the very able and ingenious oral argument and brief of counsel for appellant. With regard to the supposed error contained in the first portion of the first bill, — to wit, that the court permitted the prosecution to withdraw the announcement made the evening before, that the testimony was closed, without assigning a reason for asking such withdrawal, and allowed the introduction of other testimony over objection of defendant, — such practice is authorized by the Code, which provides that ‘ ‘ the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.” Rev. Stats., Code Cr. Proc., art. 661. And the discretion thus confided in the judge will not be subject for revision, “ unless it be made to appear that the discretion has been abused to defeat the ends of justice.” Kemp v. The State, 38 Texas, 110; Roach v. The State, 41 Texas, 262; Sherwood v. The State, 42 Texas, 498; — 322 — Harris v. The State, 44 Texas, 146; Treadway v. The State, 1 Texas Ct. App. 668 ; Lister v. The State, 3 Texas Ct. App. 17. The latter portion of this first bill of exceptions is saved to the admission of a certain portion of the testimony of the witness Bourland, who stated: “I was in Whittington’s store on the morning after Cline was killed, and before Noftsinger and Gardner were arrested. While I was there, a man came in and did some trading with Noftsinger. As soon as this man went out, Noftsinger asked Barnes, who was also in the store, who the man was that he had traded with. He said he had sold him some goods on the order of another person, and did not ask the man his name. Barnes told him he did not know who the man was; and also said to Noftsinger, ‘ What is the matter with you to-day? You must be crazy; you sold that woman, awhile ago, more calico than she paid you for. You had better go off and go to bed.’ Noftsinger made no reply, but immediately turned and walked off.” It is not perceived why this evidence should be held inadmissible. The conversation was one between the defendant himself and Barnes ; and Barnes’s impromptu declarations to him, in consequence of the strangeness of his conduct, tend to establish the fact that immediately after the homicide was found to have been committed his conduct was not in keeping with what it was ordinarily. “In a case like the present, depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived.” Cooper v. The State, 19 Texas, 443 ; Barnes v. The State, 41 Texas, 351; Hamby v. The State, 36 Texas, 523; Blade v. The State, 1 Texas Ct. App. 368. And in such cases the nature of the case, in many instances, demands a greater latitude in the presentation of the evidences of the circumstances than where a conviction is sought upon direct and positive testimony. Ballew v. The State, 36 Texas, 98. — 323 — Criminative or inculpatory circumstantial evidence is derived from the conduct of the party accused, and external objects or physical facts with their appearances as indicative of such conduct. “ Hence,” as is well remarked by Mr. Bur-rill, “ where a case of suspected crime has become the subject of judicial investigation, and the general fact of the commission of a crime has been ascertained, and particularly where vigorous measures have been set on foot to trace out the individual perpetrator, the idea, now converted into prospect, of discovery, and that becoming a more and more probable event as fact after fact is brought to light, naturally and almost necessarily fills the mind with alarm ; particularly where the criminal finds his own person drawn (or is likely to be drawn) within the sphere of investigation. Emotion and agitation exhibited under such circumstances,oespecially when no charge of guilt has yet been made or insinuated, are regarded, and justly, amongst the most convincing evidences of criminal agency that can be submitted to a human tribunal.” Burrill on Cir. Ev. 466. The court did not err.in admitting, or in refusing to strike out, this evidence. Handline v. The State, 6 Texas Ct. App. 348; Roscoe’s Cr. Ev. 18, 19. It is insisted, and this is the point reserved in the second bill of exceptions, that the court committed agrave error in permitting the witness George Porter to testify as to the import of a conversation between himself and the State’s witness Lewis Williams on the morning after the killing. Lewis Williams, when on the stand, had testified that he had seen the defendant leave the storehouse the night of the killing, and pass through a lot not far from where he (the witness) was talking to one Julia Love; that he told Julia Love it was Mr. Noftsinger, and he thought George Porter heard him tell her so. The defence introduced Porter to contradict this statement of the witness Williams ; which Porter did, he testifying, on his examination-in-chief, “ I did not see Noftsinger, nor did I hear Williams tell me — 324 — nor nnv one else that night that he saw Noftsinger, but I hoard him say something about it next morning.” On cross-examination, the State’s counsel asked the witness what the witness Lewis Williams said, the morning after Cline was killed, about seeing the defendant the night before; which question and answer were objected to, but the objection was overruled, and the witness permitted to testify that early the next morning, before Noftsinger and Gardner were arrested, the witness Williams told him he saw Noftsinger the night before get over the fence from Whittington’s lot into Dunlap’s yard. The matter having been drawn out by the defence on the examination-in-chief, it was a legitimate subject for cross-examination by the prosecution. 1 Greenlf. on Ev., sects. 448, 449. It is strenuously urged that the witness Barnes was a particeps criminis, coming within the rule of accomplices which requires that their testimony shall be corroborated. Pasc. Dig., art. 3118; Rev. Stats., Code Cr. Proc., art. 741. More properly speaking, if we. understand the position of defendant’s counsel, the witness is claimed to be an accessory, — that is, “ one who, knowing that an offence has been committed, conceals the offender.” Rev. Stats., Penal Code, art. 86. But in either view of the case, whether as an. accomplice or accessory, we do not think the position is maintainable. Barnes neither advised nor encouraged the defendant in the commission of the act, before it was done (Rev. Stats., art. 79), but, on the contrary, states that defendant never told him where he was going. “He would not tell me,” says the witness. ‘ ‘ He said he was going to get away with a man ; that a man had deprived him of his pleasure, and that he intended to deprive that man of his. I told him if that was what he wanted, I would not go with him. He then said, ‘ I am not going to-night.’ * * * I told him if he intended to get away with a man the way I thought he — 325 — did from the way he talked, that I would have nothing to do with it. And I said to him, ‘ If you do that, they will catch you and break your d—d neck.” Such language and conduct on the part of the witness was, in our opinion, any thing but encouraging, at least in the statutory sense. But it is said he promised defendant that he would say nothing about the matter, and that he did not tell what the defendant told him till some time after the killing. Mr. Wharton says : “ The concealment of the knowledge that a felony is to be committed will not make the party concealing it an accessory before the fact, nor will a tacit acquiescence, or words which amount to a bare permission, be sufficient to constitute this offence.” And if the procurer of a felony repent, and, before the felony is committed, actually countermand his order, and the principal notwithstanding commit the felony, the original contriver will not be an accessory.” Whart on Hom. (2d ed.), sects. 345, 346. The objections urged to the charge of the court are untenable. It appears to be a carefully prepared and able exposition of the law as applicable to the case, and embraced all the different phases in which the facts should, be legitimately considered, and instructed the jury most aptly in reference to the rules essential to be observed before they would be warranted in a conviction upon circumstanti J evidence alone. The zealous counsel, in their brief, say, “We do not believe the evidence in the case legally sufficient to sustain the verdict ; ” but they have failed to point out its defects and insufficiency, either in the oral argument or brief. We have examined the statement of the testimony most carefully, in view of the fact that the life of the accused was being weighed alone in the scales of circumstantial evidence. We have been unable to discover any wanting links in the chain of inculpatory facts, which, commencing with his motives, his grudges, and his threats, go on down regularly, step by step, with sure and unerring certainty, each fact consistent — 326 — with the main fact, and all the facts consistent with each other; and all, as one concrete whole, leading the mind satisfactorily and inevitably to the conclusion of his guilt, beyond the entertainment of a reasonable doubt. We have found no error in the record of his conviction, and the judgment is therefore affirmed. . Affirmed.