Coffman v. State (165 S.W. 939, 1914)

PRENDERGAST, P. J.

On this trial appellant was again convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. This is the second appeal. The decision on the first is reported in 62 Tex. Cr. R. 88, 136 S. W. 779. His punishment on the first was assessed at death. The trial this time occurred in December, 1911. The record reached and was filed in this court May 14, 1912. It is to be deplored that the case has been held here so long without a decision thereof.

Prom thp other decision the general character of the case can be understood. It is unnecessary here to give any extended statement of the evidence. Wherever it may be necessary in deciding any question raised herein such statement will be made as is necessary.

In the opinion on the former appeal we held, in effect, that the lower court erred in not granting a change of venue, and ordered the trial court to change the venue. We did not intend thereby to direct or require that the venue should be changed to any particular county, nor to take away the discretion of the lower court on that question. The law expressly confides a discretion in such matters in the trial judge, when he changes the venue on his own motion. C. O. Pi art. 626. This court has no right or authority to take that discretion from a trial judge. While, as held uniformly, it is a sound judicial discretion, not an arbitrary personal one, yet this court cannot substitute its discretion for that of the trial judge, nor take it away from the trial judge. When our Codes were first adopted, the court, of his own motion, was not authorized to-change the venue. This power was first given by the act of 1876, now article 626, C. C. P. Before said authority and discretion was given to the trial judge, <5ur statute-(article 631, C. G. P.) in effect required that the change should be made to some adjoining county, the courthouse of which was nearest to the courthouse of the county ordering such change. At the time said original law was enacted, we judicially know that there were no railroads in the country affording access from one county seat to another, but universally, or practically so, the common dirt public roads were used and had to be used. No such conditions now exist, and especially in the territory where this crime is alleged to have been committed and the case tried. The object of the old law, requiring the change to the nearest county seat, was because of convenience to the parties and the-witnesses, and to save expense in the trial. The gist of an accused’s right to a change is that he shall not be tried in a county where, from prejudice or combination against him, he cannot get a fair and impartial trial, but that he shall be tried in some county where he can get such fair and impartial’ trial, hnd not merely that the change shall be made to the county seat of the nearest county.

This record shows, and the trial judge found and held, that the courthouse of Rock-wall county was 29 or 30 miles distant on a. direct line from the courthouse at McKinney in Collin county; that there was no direct' railroad connection between tbe two courthouses of said counties; that to reach the courthouse of Rockwall from McKinney by means of railway, the distance was at least 55 miles, and perhaps farther; that while the courthouse at Sherman in Grayson county, by a direct line, is about 3 miles farther than the courthouse in Rockwall, it can be reached by railway and interurban conveyance at a distance of some 22 to' 25 miles nearer. The evidence on the trial of this question before the trial judge further showed, in effect, that where the place of the alleged homicide occurred was in the northern part of Collin county. We know judicially that practically the whole of the south line of Grayson is the north line of Collin, and that Rockwall is on the extreme southeast corner of Collin. Appellant lived, and most, if not all of the witnesses must therefore have lived, much nearer the courthouse 'of Grayson than that of Rockwall. The evidence further shows that there was no reason why the change should not be made to Grayson, for there was no prejudice against appellant or his case in Grayson that would in the least deprive him of a fair and impartial trial therein. There is not an intimation in this record, so far as any prejudice against him or his case was concerned, that he did not have a fair and impartial trial in Gray-son county. In this connection we will quote what was said by this court in Bohannon v. State, 14 Tex. App. 302, as follows: “We are of the opinion, and so hold, in accordance with the former decisions of this court, that under article 576 (626) of the Code of Criminal (Procedure, which we have quoted, the judge had the authority, of his own motion, to send this case for trial to Austin county. He was clothed with this discretion by the express and unqualified words of the law, and this law was enacted under the express sanction of the Constitution. Const, art. 3, § 45. It is true that this discretion is a judicial, and not a personal, one (Walker v. State, 42 Tex. 360; Dupree v. State, 2 Tex. App. 613), yet, it being a discretion created and confided by the laic, it mil not be revised by this coutrt in the absence of or commented on by counsel in the cause. We think it is now settled in our state that a mere casual reference to his failure to tes-tify, by either the state’s counsel or any of the jurors in considering their verdict, dq.es not present reversible error. Every juror has absolute knowledge when the accused does not testify that he has not. He is present, and must be, during the whole trial, and the jury knows he has not testified when he does not. The court in this case in his charge told the jury that his failure to testify could not be used as a circumstance against him, and that they could not use his failure to testify as a circumstance against him, or consider it for any purpose whatever. In considering appellant’s motion for new trial on this ground the court heard only four jurors testify on the subject. After hearing them he overruled the motion, thereby holding that the evidence was insufficient to authorize or require him to grant the new trial on that ground. He heard the jurors testify and saw their manner of testifying. Without reciting it, the evidence of these jurors was such as to justify him in overruling appellant’s motion. We think the court did not err on this point. Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Johnson v. State, 53 Tex. Cr. R. 339, 109 S. W. 936; Sample v. State, 52 Tex. Cr. R. 506, 108 S. W. 685, 124 Am. St. Rep. 1103; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Parrish v. State, 48 Tex. Cr. R. 347, 88 S. W. 231; Combs v. State, 55 Tex. Cr. R. 334, 116 S. W. 595; Leslie v. State, 49 S. W. 73; Mason v. State, 81 S. W. 718; Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357, supra.

Appellant complains that the court refused to give several of his special charges, numbering them. The only way this was presented in the lower court was the meire fact that appellant requested such charge and the court refused it. He then took one bill of exceptions, included all of bis special charges by merely copying them and numbering them, and then, in the same way, presented the question again in his motion for new trial. No reason in the requested charge nor in the exception showing its refusal, nor in the motion for new trial, is stated why any or either of these special charges should ■ have been given by the court. It is settled in this state that when such is the case this court cannot review the refusal to give such a charge. Byrd v. State, 151 S. W. 1068, and cases therein cited; Ryan v. State, 64 Tex. Or. R. 628, 142 S. W. 883, and eases there cited; Berg v. State, 64 Tex. Or. R. 612, 142 S. W. 884, and cases cited. It is unnecessary to collate the many decisions to the same effect. However, we have looked over all of appellant’s charges, and where proper to have been given, the court substantially embraced them in his main charge. So that in no event did the refusal of the court to give such charges show reversible error.

None' of appellant’s bills complaining of the argument of the county attorney show any reversible error. It is unnecessary to state or discuss them. Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 239; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544. It is unnecessary to cite the many other cases to the same effect.

Each side, by several witnesses each, introduced testimony to various facts and circumstances showing and tending to show a state of ill feeling, mistreatment, and threats ' by appellant towards his wife and by her towards him. Appellant objected whenever the state introduced such testimony showing, or tending to show, appellant’s said state of mind and feeling towards his wife. It is unnecessary to state the various bills, the testimony objected to, and the grounds thereof. All of this testimony was admissible for the purpose of showing malice and motive on appellant’s part. Judge White, in section 1072, in his Annotated Code of Civil Procedure says facts tending to show a motive, though remote, are admissible in evidence. Dill v. State, 1 Tex. App. 278; Jones v. State, 4 Tex. App. 436; Rucker v. State, 7 Tex. App. 549; Mathis v. State, 34 Tex. Cr. R. 39, 28 S. W. 817; McKinney v. State, 8 Tex. App. 639; Hall v. State, 31 Tex. Cr. R. 567, 21 S. W. 368; Gonzales v. State, 31 Tex. Cr. R. 511, 21 S. W. 253. Eor many other eases noted by Judge White, see the above section and section 1231 of his Annotated Penal Code. The court qualified appellant’s bills on this subject, to the effect that he admitted .this testimony for the purpose of showing relationship and state of feelings between the defendant and his deceased wife for a period of time extending from about one year prior to the time of the homicide down to a short time prior thereto.

It would have been proper for the court to have permitted Mr. S. O. Scott to state that while he did not testify on the former trial, he was sworn, placed under the rule, and was willing to testify, but was not called by either party, but this is not a matter of any grave importance, and would neither justify nor authorize this court to reverse because thereof.

There was no error in the court in permitting the state to prove by the various •witnesses what became of the mattress, to the effect that it was later burned; and of the bedclothes whereon deceased lay when she was killed, to the effect that they were washed. Because of the issue between the state and the appellant it would have been admissible to have introduced these articles on the trial, if the mattress had not been burned and the bedclothes had not been washed, for the purpose of showing and illustrating the effect of the other testimony in the case, but the court properly charged the jury as to these matters, in response to appellant’s special charges thereon, that they could not take the fact that the defendant’s mother, or any other person, took charge of the pillow slips and bedclothes on the bed upon which the deceased lay after her death, and did not produce the same in evidence, as a circumstance against him. The record in no way discloses that the state sought to show that said disposition had been made of said bedclothes by appellant, nor that the others who did it did so from any improper motive or any improper purpose.

Nor was there any error in permitting some of state’s witnesses to testify the distance a person would have had to be from the deceased to have shot her where she was shot with the shotgun with which she was killed, nor any other experiments they had made, or experiences they had had, showing the effect of such shots, or the distance a person would necessarily have had to be to have had the effect and made the wound this shot did on the deceased. •

It has not been necessary to take up each of appellant’s bills of exceptions, nor his several grounds of the motion for new trial, nor his special refused charges. What we have discussed embraces all of the material matters. As stated above, the record is voluminous. Able counsel on both sides have filed lengthy and forcible briefs, each seeking to maintain the positions they assert, and many authorities have been cited by them. We have deemed it unnecessary to take up and discuss these authorities. All of them have had our consideration. We have given all this a most thorough and careful consideration, and have reached the conclusion that there is no error shown in this record that would authorize or justify this court to reverse this case.

It, therefore, becomes our duty, as we see it, to affirm this ease; and it is so ordered.