Sanford v. State (79 Tex. Crim. 346, 1916)

PRENDERGAST, Presiding Judge.

Appellant was convicted of murder, and his punishment assessed at life imprisonment.

The record and statement of facts are quite voluminous. We have carefully studied both. There is no necessity of giving a detailed statement of the testimony. It was amply sufficient to show that appellant and deceased were both tenants on a farm near Mansfield. That both were married and had families. They lived only several hundred yards apart. Deceased, O. T. Thompson, was rather an old man, considerably older than appellant, and was living with his second wife. Some short time prior to the homicide, appellant and deceased’s wife carried on a frequent, amorous correspondence, each writing to the other frequently, and each delivering to the other in person their letters. They were also often together at deceased’s house and going back and forth therefrom to public gatherings. Sometimes appellant would see deceased’s wife at her residence when deceased was away. On one occasion at least, when they were in the wagon, on the same seat, others in front, appellant took hold of and fondled, with her consent, deceased’s wife’s hand. Deceased learned of said correspondence, and doubtless by observation and otherwise became aware of the attachment between them. It seems the families of both, as well as the nearby neighbors also became aware of the attachment between them, and there is testimony tending to show that because thereof appellant’s wife quit him for a while, and his daughters also left his home. Deceased thereupon forbade appellant coming to his house at all, ■ accusing appellant of the correspondepee between him and his wife, and their attachment also, and became very greatly incensed because of their conduct. The feeling between the two men became rather bitter, one towards the other. It was shown that appellant deliberately made up his mind to kill deceased, and told some of his friends so. He also deliberately prepared himself, procured the ammunition for that purpose, and killed deceased therewith, shooting deceased with large shot from a double-barreled shotgun, one taking effect in deceased’s side, eye and face; the other, in his back and neck, when deceased was in the public road going from his home to Mansfield, and in about one hundred yards from appellant’s house.

On the other hand, appellant introduced other testimony and his own to the effect that deceased had repeatedly threatened to kill him, which threats were communicated to him, and at the time he shot deceased, as he thought, he got a pistol out of a little handbag, or grip, which deceased was carrying with him at the time. He also claimed that deceased the day before had used some language which could be considered insulting to one of his daughters. His testimony, and his alone, clearly raised the issue of self-defense from claimed apparent danger. The court also submitted manslaughter in his behalf.

The testimony of each side showing their theories was more or less contested by the other. The witnesses giving testimony on appellant’s side were mostly himself and the immediate members of his family. Most of that by the State "was of disinterested witnesses, their neighbors. Evidently, the jury believed the State’s side, and we think the preponderance of the testimony was considerably in favor of the State and against the appellant. Evidently they did not believe the testimony of appellant and his side, or they "would have acquitted him on his claim of self-defense, or found him guilty of only manslaughter. All these matters were for the jury, and not for this court.

Appellant made an application for a continuance on the grounds of the absence of Bryan Bennett, who was then in a hospital because of a broken leg and .could not attend; of the absence of Jewel and Alford Cathey, who had not been subpoenaed; that he had been unable to procure from the court stenographer, because of the serious illness of the stenographer, a transcript of the evidence of four witnesses for the State, deceased’s wife, one of his sons, Mr. Fielder and Mr. Buttrell, who had testified on a habeas corpus hearing he had had trying to get bail; and because the county attorney had refused to let him have or see a letter from deceased’s wife to him which was taken off of his person when he. was placed in jail on the day of the killing, and the court had on that day refused his motion to require the county attorney to let him have and see said letter. The State contested,his application, and it seems the court heard evidence on it at the time, and overruled it.

Appellant was arrested and placed in jail on September 30th, the day he killed the deceased. At the time he was placed in jail the jailers found on him, and took a letter from deceased’s wife to him, and turned it over to the county attorney. The grand jury indicted him four days later. He had a habeas corpus trial for bail. The date thereof is not given. He and his attorneys were both present thereat and heard all the witnesses testify — the four the transcript of whose testimony he wanted. All four of these witnesses were present at his trial. All of them except deceased’s son testified. Early in the trial the said letter was produced, identified and introduced in evidence. It was shown that no diligence was used to secure the testimony of the Catheys, and that they were not in Texas, but in Oklahoma. By agreement between the State and appellant, the affidavit of the witness Bennett was introduced as his evidence instead of having him personally present to testify. Ho sort of injury is shown, or attempted to be shown, by appellant because he did not get a transcript of the testimony of the said witnesses on the habeas • corpus hearing; nor his not being furnished- on the very day the trial began a copy of said letter, if either any, nor all, of his grounds were sufficient to entitle him to a continuance. The court did not err in overruling it. There is no order °in the record showing that the court overruled his motion to 'require the county attorney to let him see said letter or have a copy of it. Of course, it would have been proper for the court to have required the county attorney to show him said letter, or furnish him a copy thereof; but even if the court refused his motion, it was no ground for a continuance at that late hour.

The record shows that at one time only during the trial, which lasted several daj's, did the court threaten to imprison for contempt one of appellant’s attorneys. It does appear that at this one time the court did so start to punish one of his attorneys, but that before he did so, he retired the jury, and it. seems, after discussion of the matter by the attorneys for both sides and the court, the court determined not to so punish the attorney, and did not do so. Thereupon, the jury was brought back, and the trial proceeded to a conclusion. Appellant has no bill complaining of this contempt proceeding and no bill complaining that any of it had any effect or resulted in any injury to him.

The record also shows that the appellant for some reason took the whole ninety days, which is the greatest time that could be allowed, for preparing the statement of facts and bills of exception. That on the ninetieth day he tendered all the bills and statement of facts to the 'trial judge for his action, and that the judge acted on them. The attorneys for both sides agreed to and signed, and he approved, the statement of facts. He went over the bills, some twenty-two in number, and acted upon each, on most of them making qualifications to, and explanations of, them, referring to the statement of facts therefor frequently. Some, however, he expressly refused, .because he stated no objections were made and no bill taken at the time. The record does not make, it certain whether the bills, after the judge’s action, were turned 'over by the judge to the clerk or turned back to appellant’s attorney. In either event, they were at once, and on said last day, filed by the clerk. After tire judge’s action on the bills, in one instance, on the same day they were filed, one of appellant’s attorneys filed his affidavit and had the affidavit of another person to be also made and filed pertaining thereto. The next day the affidavit of one or the other of appellant’s attorneys, and sometimes two others only, and at other times, three others, made affidavits pertaining to other of said bills. 'We will state the substance of these affidavits. They were practically duplicates of one another, the only difference being that they would name the number of the different bills to which they applied. The attorneys’ affidavit was to the effect that when a certain piece of evidence was offered by the State and objected to by him, he then offered to state the grounds and reasons of his objections, but the court refused to permit him to then do so, stating that he might insert the grounds and reasons of his objections later, after the completion of the trial. That if the court had permitted, he would at the time have stated his objections and reasons. The affidavits of these three other persons were to the effect that when appellant’s attorneys would make objections to testimony being admitted or excluded, the court would instruct the attorney to he seated and make no objections; that the court would allow them to take a bill to any testimony they desired and incorporate whatever objections they desired in the bill; and that, on some occasions, the court would threaten said attorneys with a jail penalty unless they obeyed his instructions. In each and' every instance where the affidavit of either of said three other persons was made, they were sworn to before one or the other of appellant’s said attorneys, and no one else.

We state these latter two matters in order to show that there arose during the trial friction between the trial judge and appellant’s attorneys, or rather one of them, and probably because of this, the said affidavits pertaining to said hills were made and filed. In no instance does appellant by his attorneys or otherwise pretend to make a bystander’s bill; and the affidavits, and none of them, can be construed to mean, or be intended for, a bystander’s bill. It is always to be deplored that any such friction between the trial judge and the attorneys in any cause should arise. Under the law and the decisions these affidavits can not be considered by us. Mooney v. State, 76 Texas Crim. Rep., 539, 176 S. W. Rep., 52; Maples v. State, 60 Texas Crim. Rep., 169, and cases there cited. It is unnecessary to collate the many decisions of this court following the Maples case. There are a large number of them.

Appellant’s first bill claims that he objected to the introduction by the State of said letter from deceased’s wife to him. Mrs. Thompson swore that she wrote and delivered the letter to appellant. He also so swore. Deceased’s daughter swore that the letter was in the handwriting of her mother. Appellant in his claimed bill states that he made several objections, stating them, to the introduction of said letter. The court refused to allow the bill, stating that the record does not show that any objections were made or taken to its introduction, and no objection whatever was made or taken to its introduction when offered and read in evidence. In the letter Mrs. Thompson enjoins upon appellant great care, stating she feared there was going to he trouble because of appellant’s wife’s jealousy of them. That she did not know what to do for the best; that she felt for him, and her sympathy was with him; that if things did not get better she would advise him to leave at once. “If he (deceased) was just only out' of the way, I would be the happiest woman on earth.” And she tells him not to notice her much in her husband’s presence, as he was suspicious of them, and advises him to burn her letters at once, just like she does his; "and then there will be none to' lose, or for someone to find them.” In closing, she hopes and prays that everything will work out for their good, and signs: