Stanley v. State

White, Presiding Judge.

It appears from the record that this case was called and proceedings preliminary to the trial commenced on the third of April. One or more motions for continuance were made prior to the announcement of ready for trial by defendant, and were overruled. These applications, when considered in the light of the judge’s explanations of his rulings upon them, and in connection with the evidence adduced on the trial, do not appear to have been improperly refused..

On the fifth of April, a,nd whilst the trial was in progress, the defendant made another application for a continuance on account of the absence of one Buck Shaw, showing all the necessary and requisite diligence in suing out an attachment when the witness, who was under subpoena and had been in attendance on previous days of the term, was found to be absent on the third of April, the day the case was set for trial. This attachment, however, did not issue in fact until the fourth, and was on the same day returned not executed, because the witness could not be found.

Having gone into the trial, the defendant was not entitled to a continuance unless he could make it appear, to the satisfaction of the court, that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the appellant was so taken by surprise that a fair trial could not be had. (Code Crim. Proc., Art. 568.) No such surprise is shown in the application before us, and the court did not err in overruling it at the stage of the proceedings at which it was presented.

Not being a regular, or, we may say, an authorized application for continuance, was it entitled to any consideration in connection with the other evidence, when the court was asked to grant a new trial, as would have been the case had said application been presented at the proper time? (Code Crim. Proc., Art. 560, subdiv. 6.) We are not aware that this exact question has ever been before the court. We find, however, that in more than one instance when an application has lacked some one of the statutory requirements, but the proposed evidence appeared material and probably true, it has been held that it should have been considered and weighed on the motion for new trial. And the same rule, we think, should apply here. In explaining why it was not considered on the motion for new trial, the learned judge does not base his action on the fact that the application was not authorized by law, but seems to rely for his action mainly upon the fact that, in support of this ground of his motion for a new trial, the defendant failed to produce the affidavit of Buck Shaw, the absent witness, to the effect that he would testify as was proposed in the application for continuance, or what facts he would testify to if a new trial should be granted. If the evidence had been claimed as newly discovered, then, indeed, the supporting affidavit of the proposed witness would have been requisite to the validity of the motion. (Code Crim. Proc., Art. 777, subdiv, 6; Clark’s Crim. Law of Texas, p. 571, note, sec. 6.) In all other respects, it is only when the State has taken issue with the defendant upon the truth of the causes set forth in the motion for new trial that the judge hears evidence by affidavit or otherwise, to enable him to determine the issue. (Code Crim. Proc., Art. 781.) When not controverted, and not based upon newly discovered evidence, no supporting affidavits are required. If the State took issue on and controverted the motion in this case, the record fails to show it. In our opinion the proposed evidence of Buck Shaw was material, and, considered in connection with other testimony shown in the record, was probably true. Nor does it answer the purposes for which his testimony was sought to say that the wife and son of the deceased had testified to many of the facts to which he was expected to bear witness. The witness Shaw was the only other eye witness to the transaction except deceased’s wife and son, and they became involved in it as participants before it was over. It may have been all important to defendant to have a witness detail the occurrences of the transaction ' who' was not a participant in it in any way.

The charge of the court is quite voluminous, and many propositions of law are submitted which, in our opinion, were irrelevant to the case as made by the facts proven, and were calculated to confuse, if not to mislead, the jury. This is, in a measure, we suppose, attributable to the fact that the learned judge had only a short time before tried another branch of this case wherein the relations of the parties to the transaction were somewhat variant from those presented in this record. Some of' the errors pointed out in the John Turner case (ante, p. 378) have been corrected in the charge in this case, but the same charge upon “implied malice” was given, and we refer to that case for a discussion of its sufficiency. .With the exception of one or two particulars to be mentioned, we are of opinion that it submits correctly the law upon the main features of the case.

In charging upon the rights of a party in defense of his home and premises against the intrusions of trespassers or those guilty of improper conduct after entering by invitation of the owner or occupant, the learned judge, we think, infringes upon the province of the jury by declaring as law a matter which they alone should have determined, if so, as matter of fact, in instructing them “that entering into a quarrel or any angry verbal altercation with the occupant of the home premises, against his consent, in the presence of his wife and children, if any he has, would be improper conduct in the sense here used.” We are of opinion that this instruction was a charge upon the the weight of evidence, and, taken in connection with the context, was calculated to impress the jury that defendant had been guilty of such improper conduct as warranted the deceased in the exercise of extreme means and force to eject him from the premises.

On the trial, the State proved the statements of the defendant Stanley made to one Summers after the homicide. Amongst other things, appellant told the witness that Britton Turner, a party who was indicted in another case for this samo murder, said that “if he (Stanley) did not stick up to what he said, he would give him the d—dest whipping he ever had.” It was in proof that appellant did not want to go with the Turners to the house of deceased; that he said he was afraid, if he went, they would get into a difficulty; that he was a man of peaceable disposition, and that, after they started to the deceased’s house, appellant expostulated with the others, and did not want to go. In consideration of these facts and other evidence in the record, defendant’s counsel requested special instructions from the court to the jury, which were refused. These instructions were: “If you believe from the evidence that John Turner and Brit-ton Turner, by threats or otherwise, exercised undue influence over the person of Thomas Stanley, sufficient to overcome the mind of an ordinary man, and thereby induced Thomas Stanley to accompany them to the residence of G-. W. Montzingo, then he was excusable in being there.” Again: “If you believe from the evidence that Thomas Stanley was a mere trespasser upon the premises of G. W. Montzingo, or was brought there by undue influence exercised over his mind by threats or otherwise from John and Britton Turner, sufficient to overcome the will of an ordinary mind, and that Stanley used no insulting words or threatening gestures previous to the attack of Montzingo, then Q-. W. Montzingo was not justifiable in doing him serious bodily injury, except in defense of himself and family.”

Now, whilst these instructions were not, perhaps, critically correct, and were based upon a state of facts which would not bring themase within the letter of the statute which makes duress a complete defense for acts otherwise punishable (Penal Code, Art. 43), still we believe they are within the spirit of that statute, and, under the peculiar circumstances of the case, should have been given in charge to the jury.

Several other errors are assigned, but the questions are such as are not likely to arise on another trial. Because of those discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered June 4, 1884.