
    WELK v. STATE.
    (No. 8425.)
    (Court of Criminal Appeals of Texas.
    June 25, 1924.
    Rehearing Denied Nov. 12, 1924.)
    1. Criminal law <&wkey;I34(4)— Evidence held to show no abuse of discretion in refusing change of venue.
    Evidence held to warrant refusal of change of venSe under rule that such refusal must be a clear abuse of judicial discretion to warrant reversal thereon.
    2. Criminal law &wkey;599 — Continuance on ground of surprise at testimony of witness being inconsistent with previous statement properly denied.
    Continuance on ground of surprise at testimony of state witness as variant from statement before trial was properly refused, where witness accounted for previous misstatement .by explanation that, being in jail with defendant, he feared to tell truth, and where nothing was averred as to counsel’s ability to benefit by a continuance.
    3. Criminal law <&wkey;37l(l2) — Evidence of extraneous crime admissible as showing motive.
    Where defendant is charged with murder resulting from attempted jail delivery, evidence that he was in jail on another charge of murder at time of crime in question was admissible, under rule that proof of extraneous crime is admissible when it shows motive.
    4. Criminal law &wkey;>763, 764(17) — -Instruction to consider evidence of extraneous crime for purpose of motive only held not virtual instruction of guilt for motive suggested.
    Where defendant is charged with murder resulting from attempted jail delivery, ah instruction to limit evidence that he' was in jail on another charge of murder at time of crime in question, to determination of motive only, held not erroneous as being a virtual instruction that defendant did commit the murder, and with motive suggested.
    5. Homicide &wkey;>273 — Evidence held not to raise issue of coercion, therefore failure to submit it to jury not error.
    Failure to submit'to jury issue of coercion of accused by third person held proper; evidence being insufficient to raise such issue, within Pen. Code 1911, art. 44.
    6. Witnesses <&wkey;389 — Impeachment by showing contrary statements out of court denied by witness held proper.
    Witness having been asked, with respect to certain statements at variance with his testimony, if he had made them, and having denied them, testimony to effect that he did make them was properly admitted for purpose of impeaching him.
    7. Criminal láw <&wkey;64l(l) — Refusal of sheriff to allow consultation between defendant and counsel until 5 days before trial held not abridgment of constitutional 'guarantee.
    Refusal of sheriff to allow consultation between defendant and counsel until 5 days before trial held not, under circumstances, an abridgment of state Constitution, art. 1, §-10, which guarantees every accused .person the right to be heard by himself or counsel.
    On Rehearing.
    8. Criminal law &wkey;>594(I) — Refusal of continuance based on forced dlelay in processing witnesses not error, since witnesses in question were in court and available.
    Where witnesses were present in court and available to accused, refusal of continuance, sought on ground of delay in obtaining processes for them, due to denial by sheriff of conference between accused and counsel, was not error.
    9. Criminal law &wkey;>9!6 — Refusal of conference between accused and counsel cured by failure to object until motion for new trial.
    Complaint of refusal of sheriff to allow conference between accused and counsel until 5 days before trial comes too late when urged for first time in motion for new trial.
    Appeal from Criminal District Court, No. 2, Dallas County; C. A. Pippen, Judge.
    Sidney Welk was convicted of murder, and ■appeals.
    Affirmed.
    See, also, 96 Tex. Cr. R. 373, 257 S. W. 1098.
    J. Frank Wilson and Wm. Hadden Hill, both of Dallas, for appellant.
    Shelby S. Cox, Grim. Dist. Atty., of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. .
   LATTIMORE, J.

From conviction in criminal district court No. 2 of Dallas county for murder, with punishment fixed, at death, this appeal is taken.

Mr. Champion, assistant jailer in the Dallas county jail, was shot in the back and killed on the sixth floor of said jail on September 26, 1923. The killing grew out of an attempted jail delivery participated in by appellant and one Gaines; the latter being billed by officers who came presently to tbe scene, and who testified in detail to tbeir battle witb Gaines and appellant upon tbeir arrival. Two pistols bad been smuggled into tbe jail, one an automatic .32, and tbe other a .38 special revolver. Tbe .38 was found by tbe body of Gaines, and tbe automatic by appellant who was wounded in said 'battle. Deceased told said officers that be was going to die; that Pete Welk (appellant) shot him in tbe back. Inmates of the jail described tbe attack on Mr. Champion by Gaines and appellant, and affirmed that, because apparently of tbe jailer’s refusal to deliver to them a key which was necessary to effect tbeir escape, Welk shot tbe officer witb tbe automatic pistol as tbe latter threw tbe key out of a window. Death resulted tbe same night. Appellant did not testify herein, but introduced one Hadley as bis only witness, who stated that be was an inmate of tbe jail and cell mate witb appellant. This witness testified in effect that Gaines shot Mr. Champion, and bis evidence tended to show that appellant bad taken no part in tbe matter until after Mr. Champion was shot. Upon predicates properly laid, this witness was impeached by proof of statements at variance witb bis testimony. Other matters of testimony may be presented in our discussion of tbe legal questions raised.

Appellant sought .'a change of venue, which application was controverted by tbe state in an attack upon tbe means of knowledge of his two compurgators. Tbe learned trial judge beard evidence. Most of tbe witnesses favorable to appellant lived in one community in Dallas county, a rural community in tbe northeast part of said county, and most, if not all, of them avowed tbeir lack of knowledge of tbe attitude, of prospective jurors in other parts of tbe county. Several of appellant’s witnesses upon this point averred tbeir belief that be could obtain a fair trial in Dallas county. It was in testimony that in said county there were about 75,000 possible jurors, and all tbe witnesses for the state testified that a fair and impartial trial could be bad therein. The books are full of decisions on tbe subject, and we do not deem it necessary to discuss them here. Tbe burden of showing that the venue should be changed is placed by law upon tbe accused, and tbe rule is well settled that, unless it is eléar that the judicial discretion of tbe trial court has been abused, a reversal will not be ordered. Tbe authorities seem in accord, and need no citation.

Appellant asked for a continuance to obtain 3 witnesses. His bill of exceptions, complaining of tbe refusal of bis application, is qualified by .the statement that all 3 of said witnesses were present at tbe trial, and were tendered to appellant. Another application was made for continuance during tbe trial, apparently on tbe ground of surprise at the testimony of a state witness, it being asserted that tbe witness bad made a statement . to tbe attorney of appellant, variant from bis testimony. Keither tbe application made during the trial, nor tbe bill of exceptions to its refusal, shows bow appellant could have been advantaged by a postponement or continuance of tbe case. Thé witness in question admitted that be did wrongly inform appellant’s counsel, but gave as bis reason that be was at tbe time in tbe same' part of tbe jail as the appellant, and- that be was afraid to tell appellant’s counsel tbe truth. Nothing is averred as to tbe expectation of ability of appellant to obtain by a postponement any fact or facts contrary to those revealed by tbe testimony of said witness. Having admitted that be bad falsified, no effort was further made to impeach said witness, and we perceive no error in overruling either application for continuance.

In tbe development of its case, tbe state showed that at tbe time of the commission of this offense appellant was confined in the county jail on a charge of murder, to which testimony objection was made on tbe ground that this was proof .of an extraneous crime, was hearsay, and prejudicial to appellant. Tbe evidence was admitted to show motive. It seems reasonable. One casually in jail would not likely kill bis jailer in an effort to get out. One charged witb a misdemeanor would hardly go to tbe lengths to effect escape as might one confined on a felony charge; and this would seem especially true if tbe felony be of tbe grave character of murder. It is held by this court that proof of extraneous crimes becomes admissible when same shows a motive. Hamblin v. State, 41 Tex. Cr. R. 140, 50 S. W. 1019, 51 S. W. 1111; Smith v. State, 44 Tex. Cr. R. 59, 68 S. W. 267; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358; Johnson v. State, 29 Tex. App. 150 15 S. W. 647; Chandler v. State, 60 Tex. Cr. R. 329, 131 S. W. 598. Tbe proof in tbe instant case on this point went no further than to show that appellant was held under a charge of murder. Mr. Branch cites many cases in bis Annotated P. O. § 1880, upholding tbe admissibility of such proof when material to show motive.

In tbe charge of tbe learned trial court appears tbe following:

“Now, I instruct you that, if you consider said evidence that be was so confined upon the charge of murder for any purpose at all, you will only' consider it for the purpose of aiding you, if it does aid you, in determining the motive or intent with which the defendant acted at the time the said Willis Champion was killed, if he was, and for no other purpose.”

This was excepted to as being on tbe weight of tbe evidence — as being.an instruction in effect that appellant being held on a charge of murdér was the motive for tbe hon»> icide — and that same was a virtual instruction that appellant did hill deceased. We think analysis of the charge quoted reveals the lack of merit in these contentions. Other exceptions to the charge were, based on its failure to submit the issue of coercion of appellant by Gaines. That no issue need be submitted unless 'raised by the testimony is the plain holding of this court in many cases. Appellant’s testimony tending to raise 'this issue must be derived solely from that of his Y7itness -Hadley. After stating that he was being put back in jail by deceased at the time of the attack, and that Gaines with a pistol ordered deceased to “leave go that door,” and that Gaines by his efforts kept the door open, and that deceased started around the cell, said witness, referring for the first time to appellant, said:

“Pete Welk was standing here by the sink, leaning on a table like this, with his arm up like that, and George turned around and says, ‘Gome out of there, Pete,’ and Pete walked out, and George turned again to Captain Champion, who was going down this corridor this way. I was standing back over here against the wall, and I turned my head just about a second like that, and the shot was fired. When Pete walked out, George said, ‘Get those trusties.’ When Pete came .out of the cells, Gaines was right along here, and Mr. Champion was right about here. When George said ‘Get those trusties,’ Pete ran over here, and I seen him start in the hospital. I could not say what kind of a gun Gaines had when he shot Champion, but I know it wasn’t no large gun like a .45 or anything like that. I ran around here and down this corridor, and squatted down, then I .came out around here, and George came up with Champion like this, holding his collar and ramming him with his gun. I don’t know where Pete Welk was at that time. Eater Pete came from around here somewhere, I don’t know where, but he came by me here, holding his gun like this, and says, ‘Get back around there.’ I says, ‘Pete, you know me,’ and he said, ‘I know you, but it is best for you to go back around there.’ That is the last time I saw Pete until I saw him lying out here under the steps; that was after the officers had come in. George was in the hospital the last time I saw him; he was dead at that time.”

As we -understand this, it seems an effort on the part of appellant to show he took no part in the homicide, and not to show that he aided in same, but was forced so to do by Gaines. We find nothing in this testimony reasonably indicating coercion or duress on the part of Gaines, and think the charge not open to the exception. Article 44 of our Penal Code, on the subject under discussion, provides that, in order to avoid liability for nets done under duress, threats or actual violence toward the party claiming to be so coerced, 'or forced to act, must be shown. If threats are relied on they must be, first, the infliction of death or personal injury; second, such as are calculated to intimidate a per- , son of ordinary firmness. Applying what is said in this article to the facts in the instant case, we observe no proof of any threat or violence to appellant by Gaines, and therefore need go no further in a discussion of the proposition raised.

The state laid proper predicates for the impeachment of the witness Hadley by asking him with reference to statements made (by him at variance with his testimony as given on the witness stand, and, upon his denial of such statements, witnesses were introduced who swore that Hadley had so stated to them. This testimony was admissible, and was properly limited in the charge of the learned trial court.

Serious complaint is made of the refusal of the sheriff of Dallas county to permit counsel, who had been appointed to represent appellant, to see him until the 17th of October, the trial being set for October 22d. We regret that on the facts this matter seems in some confusion. Prom the affidavit of appellant’s counsel appended to his motion for new trial, we learn that said counsel was appointed to represent appellant on October 8th, and made several demands upon the sheriff for permission to see appellant before he was accorded the privilege on the 17th of said month, as stated above. The affidavit of the sheriff, which is appended to the state’s reply to appellant’s motion for new trial, sets out- that appellant was confined in jail on a murder charge prior to the killing of the assistant jailer on September 26th, and that he was represented in said former murder case by counsel of his o.wn choice. That the killing of Mr. Champion resulted from the use of two pistols which had been secretly smuggled into the jail, and that at once after said homicide investigation was set on foot by the Dallas county authorities, with a view of ascertaining how said weapons got into the jail. Gaines was dead, and the chief hope of finding the answer to said inquiry lay in appellant. Said affidavit states that appellant’s attorney in the former case was acting for him, and was negotiating with the state in an effort to secure an agreement on behalf of appellant that, in return for information regarding the manner in which said weapons got into the jail, appellant’s punishment in the instant ease should be no more than life imprisonment. Said affidavit further states that, when the attorney appointed to represent appellant in this case consulted the jailer with reference to seeing appellant in jail, the officer informed said attorney of the investigation which was then proceeding, and told him what he was doing, and that it seemed agreeable to said attorney to delay seeing appellant in view of the facts stated.

In connection with the facts made apparent by said affidavits, our attention is also called to the proposition that, following the consultation between appellant and said counsel on the 17th of October, an application was made for 3 witnesses, but all of them were present at tbe trial.

Our Constitution guarantees to every accused person tbe right to be beard by himself or counsel or both. Section 10, art. 1, Constitution of Texas. No complaint is made of any abridgment of this right at the time or during the actual trial, nor was there request for postponement or continuance in order to have opportunity for such consultation. As persuasive we are referred to article 558 of our C. C. P., which provides that counsel shall be appointed for accused persons in capital cases, but in said article it is stated as follows:

“And the counsel so appointed shall have at least one day to prepare for trial.”

Arbitrary refusal to allow one accused of crime the right to confer with counsel would merit and should receive severe condemnation, and if on appeal such fact be shown, and that a postponement or continuance for the purpose of such consultation was refused, we think the ease should be sent back for another trial; but the reasons advanced in the showing made by the state in this case seem to support the conclusion that the denial was not arbitrary, and that appellant was in conference with an attorney of his own choosing, who was seeking to perfect for him an advantageous settlement of his case, and who to this extent was representing his interests. We also appear bound by the further conclusion that nothing in the record suggests that, from lack of conference with his attorney appointed herein prior to October 17th, injury may have resulted. The only witnesses desired were present. Appellant was in jail when this offense was committed, and remained there continuously up to his trial and in consequence could know nothing by personal investigation of the attitude of the jurors of the county, in order to aid his counsel in the matter of change of venue. The killing grew out of no complicated or protracted feud, business, or domestic trouble, or personal enmity requiring extended inquiries and explanations and frequent conferences.

From no angle of approach can we see possible injury reflected in this record from lack of earlier conference, and in such case, added to the fact that it is not clearly shown that the refusal was arbitrary, we do not believe we would be justified in holding that this case should be reversed for such refusal alone.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

HAWKINS, J.

Upon motion for rehearing, appellant again presents the same matters which were urged upon original submission as grounds for reversal of the judgment. We advert to only one. When appellant’s case was called for trial, his attorney presented an application for continuance based upon the absence of 3 witnesses. In explaining an apparent lack of diligence in not having process for them issued earlier, he states that he had been deprived of an opportunity to confer with his client, and that process had been issued at as early a date as it was possible after he did have such conference. There was no general complaint urged in the application for continuance that appellant had not had sufficient time to prepare his case for trial by reason of being denied the privilege of conferring with his client. The reason given for the delay in issuing process for witnesses would have appealed strongly to this court if said witnesses had not been obtained; but that phase of the case is eliminated because the witnesses were secured, and were present in court at the time of trial, and were available to appellant if he desired to use them.

After the verdict was returned, appellant filed a motion for new trial upon the ground, among others, that he was denied the privilege of conferring with his counsel. It appears from the bill of exception, complaining of the action of the court in overruling his motion, that the case was set for trial on October 22d; that on the 8th of that month J. F. Wilson had been appointed by the district judge to represent appellant; that immediately notice was given to Wilson as to his appointment, and on the following day (October 9th) he called upon the sheriff, and was refused permission to see his client; that this request was repeated daily up to and including October 16th; that on the 17th he was given, for the first time, an opportunity to confer with appellant. In the meantime, on several occasions, the attorney had appealed to the district judge, and was advised toy him that the privilege of conferring with his.client would be accorded him. This statement is not controverted. The sheriff gives as his reason for denying the conference the fact that Judge Nelms had formerly represented appellant in a murder case, upon which he was confined in jail at the time of the killing, out of which the present prosecution grew, and that Judge Nelms was endeavoring to get ■appellant to give information relative to the smuggling of arms into the jail, with which the killing of the jailer occurred, and was endeavoring to induce appellant to give this information, with a view to lightening the punishment in the present ease. It is not made to appear from the record that these negotiations were by authority of any one in a position to offer appellant immunity or concessions of any kind. However, neither before the trial nor at any time during its progress was a motion presented to the trial court to delay the case, upon the ground that the denial of conference with appellant had rendered it impracticable for counsel to make the necessary preparations for trial, save as it related to the issuing of process for- witnesses, which, as before stated, was unavailable because said witnesses were produced in court. The right of one accused of crime to confer with counsel and receive instruction and advice in the preparation for trial is one of the rights guaranteed by the Bill, of Rights embraced in our Constitution. Such is the holding in many decisions of this court, and they are in harmony with the courts of other states having like constitutional provisions. These principles and some of the decisions are adverted to in the opinion of this court in the case of Turner v. State, 91 Tex. Cr. R. 627, 241 S. W. 162, 23 A. L. R. 1378.

While the reasons'actuating the sheriff in not giving opportunity for conference, because of an effort on the part of the officers to ascertain who had smuggled the pistols into the jail, may have appeared satisfactory to him, yet we believe they are entitled to no weight in passing upon appellant’s right to confer with Ms attorney. The sheriff does not, in his affidavit, say that appellant’s attorney agreed to the delay, but simply that he thought the delay was satisfactory to the attorney. If the sheriff was prosecuted, under article 1046 P. C., which declares it a criminal offense for an officer in custody of a prisoner to prevent his consultation or communication with his attorney, or obtain his advice or services in the protection of his legal rights, then the excuse given by the sheriff might be a matter which would be admissible in evidence in his favor to rebut the claim that his conduct was willful, but it could not and ought not to have any bearing upon the rights of an accused, if he has not otherwise waived the right to complain of the refusal of such conferences. Article 558, C. O. P., provides for the appointment of an attorney for one accused of crime, and says that counsel so appointed shall have at least one day to prepare for trial. We think it is not to be understood that this statement in the statute means that in all cases one day would be sufficient, but in view of that statute, if counsel so appointed feels that additional time is necessary to make preparation for the trial, he should, before announcing ready, make a demand for further time, and show the court his reasons for such requested, delay. We are of opinion that complaint of the character now presented comes too late when urged for the first time in motion for new trial. It has then passed beyond the power of the court to correct the matter, ■ which he might have done if called to his attention before trial. As we understand the record, appellant urges that he is entitled to a reversal of the judgment upon the broad ground that the sheriff acted wrongfully in declining to permit him to confer with his counsel. If he is right about this, then exactly the same point would be available if this alleged wrongful act had occurred 6 months before the trial of the case. While we are not unmindful that the severest penalty known to the law has been assessed against appellant, we are unable to agree with him that under the record now before us the matter which we have been discussing is a ground upon which this court would be authorized to order a reversal of the judgment.

For the reasons stated, the motion for rehearing is overruled. 
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