Tweedle v. State

DAVIDSON, Judge. A continuance by appellants was sought for the testimony of Mrs. Sivil, which was overruled. One of the grounds of the motion for a new trial was based on this action of the court. By her it was expected to be shown “that there were only three shots fired and that the first shot she took to be a shotgun, from the sound, as it [590] was a different sound from the other two, and that Mrs. Tyler came to witness’ house in a few minutes after she heard the three shots and told her that the Tweedles had killed her husband. ’ ’ It was not only proved to be so but was an admitted fact that the first shot fired was fired from a ¡shotgun. It was a fact proved by all the eye-witnesses, including the defendants, who testified that Tyler was killed by George Tweedle with a pistol, and that Mrs. Tyler and her baby were shot by W. H. Tweedle with a shotgun. There was but one witness who testified that the shotgun was fired twice. All the other witnesses contradicted this, and show that the shotgun was fired but one time and the pistol twice. The deceased was shot twice with a pistol. Mrs. Tyler testified that W. H. Tweedle shot twice with the shotgun. Suppose she was mistaken, or testified falsely as to the number of shots fired from the shotgun, would that be material, or would it be material that in the opinion of Mrs. Sivil only one shot was fired from the shotgun f If so, it was abundantly proved as a fact without resort to opinion on the subject. Whether W. H. Tweedle fired the shotgun once or twice could not affect the result of the case. The fact still remained that the deceased was shot to death by pistol shots fired by George Tweedle. The Tweedles both testified that they were present and did the shooting, one with a pistol and the other with a shotgun. “The rule is well settled that testimony which, if procured, would not tend to disprove the guilt of the accused is of too immaterial a nature to entitle him to a new trial based upon •an application for a continuance to obtain it.” Browning v. The State, 26 Texas Ct. App., 432; Burton v. The State, 21 Texas, 337; Hildreth v. The State, 19 Texas Ct. App., 195; Fernandez v. The State, 4 Texas Ct. App., 419; Chaplin v. The State, 7 Texas Ct. App., 87; Frye v. The State, 7 Texas Ct. App., 94. “It is not in every case, however, where the absent testimony is material and probably true that this -court will revise the ruling of the trial judge.” Covey v. The State, 23 Texas Ct. App., 388. “It is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction not merely that the defendant might have been prejudiced in his right by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted.” Covey v. The State, 23 Texas Ct. App., 388. The evidence adduced on the trial, especially the uncontradicted inculpatory facts proved, will demonstrate that the facts expected to be proved by the absent witness are wholly immaterial in this case, and if true would not in the least tend to disprove the guilt of the parties or cast a shadow of doubt in that direction. The third bill of exceptions is thus stated in the record: “The court erred in compelling Mrs. Tweedle, the wife of one of the defendants, and mother of one of the other defendants, to answer, over objection, [591] if her husband W. H. Tweedle had not whipped her and had to leave the country for it some years ago. ’ ’ This is the entire bill of exceptions, and it will be observed that it fails to" state or give the answer of the witness. The bill of exceptions must not only show that the witness answered the propounded question, but it must also state the answer, and the further fact that that answer was admitted in evidence. The bill must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error. Willson’s Grim. Stats., secs. 2368, 2516. During the opening argument the district attorney said “that a man could breathe slander and circulate slanderous reports against a woman, but he was not half as bad as the man that whipped his wife.” The appellants’ counsel objected to this language. Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. The State, 19 Texas Ct. App., 227; Bass v. The State, 16 Texas Ct. App., 62. During the further progress of the argument the prosecuting attorney asked this question: “Why did not these defendants at the examining trial offer the same evidence in extenuation as they do now?” This remark is complained of also. The-record shows that all of the witnesses, or nearly all, who testified for the defendants on their final trial also attended the examining trial, but none of them testified. The State developed the same state of case on both trials. Defendants Tweedle had on the night and day subsequent to the killing made statements of the manner and cause of the killing directly antagonistic to the evidence offered on their final trial. To the sheriff their statements were that the deceased came upon them armed and tried to kill them, while upon their final trial they testified that they killed the deceased because he had used insulting language concerning Mrs. Tweedle, and had been guilty of other insulting conduct toward her. How on the examining trial none of these facts were proved nor offered in evidence. The.State proved all these matters fully. The remark of the district attorney was a legitimate criticism upon the failure of the defendants to offer in evidence at the examining trial the conduct of the deceased toward Mrs. Tweedle, which was the principal defense on the final trial. We have given this case a careful examination, and we find no error for which it should be reversed in so far as it relates to W. H. Tweedle and George Tweedle. After a full investigation of the facts bearing [592] upon the connection of the little negro boy Martin with the killing, we do not believe that the facts show him tó be a guilty participant in the tragedy. He evidently was not aware that anybody was to be killed; had followed the Tweedles to the scene of the killing for a different purpose and on a different mission, as we think the facts fully prove. As-presented to us the facts do not justify the verdict against Tom Martin. It is therefore the opinion of the court that the judgment as to Tom Martin be reversed and the cause remanded for another trial, and as to W. H. Tweedle and George Tweedle the judgment should be in all things affirmed, and it is so ordered. Affirmed. Judges all present and concurring.