Stubbs v. State

On Petition to Rehear

Counsel for Stubbs have filed herein a very courteous and dignified petition to rehear wherein one of the questions raised on the original appeal is again presented in a different light. This presentation states that the admission of a portion of the transcript taken in the first trial, ten years ago, compounds “the original violation of the constitutional rights of this defendant” due to the lack of proper cross-examination at the first trial.

It is argued that in view of the fact that Stubbs’ conviction was set aside and a new trial granted because of the speedy trial of Stubbs in the first instance counsel were not given a chance to investigate the background of the prosecutor, Axel Holm, and that the using of a portion of the transcript of the testimony of Holm in the *577first trial compounded the error committed in the first trial, since counsel did not have an opportunity to cross-examine Holm and sufficiently investigate the matter.

We do not agree because when this present case is looked to, it is seen that Stubbs at the present time, ten years yater, admitted he forced Axel Holm and his wife at pistol point to get in the back seat of their automobile. He then drove it six miles west of Bristol on Highway 11-W. There is no showing that Holm had a pistol, and there is no reason to suppose that Holm would shoot and kill his wife and shoot himself twice. Neither may it be overlooked on the second trial the unerring identification by Axel Holm of Stubbs as his assailant, which identification was made in the presence of three Highway Patrolmen and a former police investigator of the City of Bristol and the attending physicians, who all except one appeared as witnesses for the State in the second trial and testified to these facts.

It is difficult for us to see how an investigation into the background of Holm and his wife who were residents of Texas and naturalized citizens of Swedish descent and who happened to be traveling on the highways of this State when this crime was committed could have helped the present appointed counsel or the counsel at the first trial concerning any matters affecting the credibility of Holm. There is more than ample evidence, which was believed by the jury to support the verdict and no further investigation of the background of Holm could have aided Stubbs in any way.

Thus, after fully considering this petition to rehear, it must be denied.