
    HORNSBY v. STATE.
    (No. 6444.)
    (Court of Criminal Appeals of Texas.
    Dec. 14, 1921.
    Rehearing Denied March 1, 1922.)
    1. Indictment and information <@=>159(4) — Refusal to strike an alias name of defendant out of indictment held not erroneous.
    Under Code Cr. Proc. 1911, arts. 559, 560, providing that, on suggestion of defendant, if indictment does not state defendant’s name it shall'be corrected, in a prosecution for murder, where defendant had lived at the place of the homicide under the name of S., and was referred to in the indictment as H., alias S., since it was essential to prove defendant had gone under the name of S., the refusal to strike it out of the indictment was not error.
    2. Crimina! law <®= 1091(11) — Transcribing stenographer’s notes in question and answer form not compliance with statute concerning bill of exceptions.
    Under Rev. St. art. 2059, providing that objection shall be stated with such circumstances or so much evidence as necessary to explain it, and no more, and as briefly as possible, transcribing stenographer’s notes in question and answer form is not a proper bill of exceptions.
    3. Criminal law <®=510!/2 — ‘Testimony that deceased disappeared from home on evening of homicide held admissible.
    In prosecution for murder, in which the state introduced, evidence by an accomplice that defendant had enticed the deceased to defendant’s home and killed him, testimony of deceased’s wife that deceased, the keeper of a garage, had failed to come home to supper at the usual time on the evening of the homicide, and that she failed to find him at his place of business or elsewhere, was competent to corroborate the testimony of the accomplice.
    4. Criminal law <@=>419, 420(I) — Evidence that deceased was not at his home on evening of homicide held not hearsay.
    In prosecution for murder, testimony by the wife of deceased that he did not return from his garage to his home for supper at the usual time, and that she failed to find him at his place of business or elsewhere, was not hearsay, but direct evidence, tending to prove a relevant fact.
    5. Criminal law <@=>510!/?. — Evidence held competent to corroborate the testimony of an accomplice.
    In a prosecution for murder, in which defendant claimed to have been out of the state at the time of the offense, testimony of a witness to whose home defendant’s accomplice was taken after his arrest that witness saw a man and boy at B., and they rode to A., both places being in the state, one with the witness and the other with his brother, was relevant to corroborate testimony of the accomplice that he and the defendant had conversation with parties at B. and rode with the witness to A. at a time inconsistent with the theory of defendant that he was out of the state.
    6. Criminal law <@=>510 ^ — Evidence held admissible as tending to corroborate testimony of accomplice.
    In a prosecution for murder, in which the state introduced testimony of an accomplice that he was present with defendant at an interview with D„ the testimony of D. that defend-, ant and the accomplice came to her home several days after the homicide was admissible as tending to corroborate the testimony of the accomplice.
    7. Homicide <@=>170 — Evidence that defendant was seen at house of woman with whom he. lived, on day of homicide held admissible.
    In a prosecution for murder, where defendant tried to establish an alibi, an objection to evidence that, in the evening of the day of the homicide, defendant was seen at his house, where it was conceded he lived with a woman to whom he was not married, was without merit. <
    8. Homicide <@=>174(2) — Evidence of undertaker as to condition of body held admissible.
    In prosecution for murder, where the condition of the body of deceased as to wounds and the condition in which it was found was proved by a doctor and other witnesses, testimony of an undertaker as to the condition of the wounds, and finding blood on a blanket and quilt on which the body was brought to his place of business, was not objectionable.
    9. Criminal law <@=>l 170'/2(3) — Question withdrawn on objection not reversible error.
    Where O. testified that she had pleaded guilty to a charge of living in adultery with defendant, putting the question as to whether she had pleaded guilty to living in adultery with defendant to another witness, which was withdrawn on objection, was not reversible error.
    
      10. Homicide <§=>174(7)— Evidence of efforts of officer to ascertain whereabouts of defendant admissible.
    In a prosecution for murder, in -which defendant was arrested in a distant state a month after the homicide, on proof of flight by the state and proof of an offer of reward by defendant, the admission of testimony that an officer had printed and distributed circulars describing defendant, upon which were printed his picture and finger prints, and offering a reward for his arrest, was not illegal.
    11. Criminal law <@=614(1) — Refusal of second motion for continuance held not an abuse of discretion.
    In a prosecution for murder, in which defendant introduced depositions taken in another state which arrived 8 days before trial, the refusal of a second motion for continuance because three witnesses had not testified in the ■depositions, where defendant showed no effort after the filing of the depositions to secure their testimony, held not error.
    On Motion for Rehearing.
    12. Criminal law <@=6I4(I) — Refusal of second continuance held not error.
    In a prosecution for murder, in which defendant introduced depositions filed 8 days before trial, which lasted'4 days, although defendant’s diligence could not have obtained testimony of three witnesses, who did not testify by deposition, where defendant made no effort to obtain testimony, and other witnesses by deposition testified substantially to the same facts, refusal to grant a second continuance was not error.
    13. Criminal law <@=6I4(3) — In second application for continuance, it must be shown that defendant is guilty of no laches or neglect.
    In the second application by defendant for continuance no presumptions obtained in favor of the application, and it must be shown that ■defendant is guilty of no laches or neglect.
    Appeal from District Court, Bell County; M. B. Blair, Judge.
    George F. Hornsby was convicted of murder, and be appeals.
    Affirmed.
    Sam D. Snodgrass, of Temple, for appellant.
    W. U. Early, of' Brownwood, Lewis H. Jones, of Belton, T. C. Wilkinson, of Brown-wood, A. L. Curtis, of Belton, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a Judgment condemning appellant to suffer death for the murder of J. N. Weatherby.

The body of the deceased, who apparently had been dead 12 or 14 hours, was found about 7% miles from the town of Brown-wood on the 19th of October, 1920.

Willie Carter, an accomplice, testified that the appellant killed the deceased on the 18th day of October, put the body in an automobile belonging to deceased, and deposited it at the point where it was found. This accomplice also testified that he and appellant remained in company with each other for about 8 days after the homicide, when they separated in Fort Worth, Tex.

Appellant testified that he left Brownwood on the morning of the 15th of October and went to Oklahoma City, leaving there on the night of the 16th, arriving at Little Rock, Ark., at noon of the 17th, at Memphis on the following morning, and at Birmingham, Ala., at 1 o’clock p. m., October 19th, where he remained until his arrest.

Appellant was described in the indictment as George F. Hornsby, alias George H. Scott, in a timely manner he suggested that his true name was George F. Hornsby, and sought to have the alias George H. Scott eliminated from the indictment. Complaint is made of the refusal of the court to comply with this request. When the name of the accused is not correctly set out in the indictment, articles 559 and 560 of the Code of Criminal Procedure designate the method of having the indictment state the true name. There are instances of reversal for failure to comply with the law. Myatt v. State, 31 Tex. Cr. R. 524, 21 S. W. 256; Popinaw v. State, 52 Tex. Cr. R. 409, 107 S. W. 350. The language of the statute is:

“If the defendant, or his counsel for him, suggests that he bears, some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself.”

In the instant case, the name suggested was George H. Hornsby. That name was in the indictment, but there was stated also therein the name of George H. Scott. Whether the statute in question applies to a like situation has never, so far as we.are aware, been decided. From Mr. Bishop’s work on Criminal Procedure, vol. 2, § 681, we quote:

“If it is uncertain which one of two or more names will appear in the evidence as the defendant’s, the method is to give both or all, connected by an alias dictus; as, John Richardson, late of, etc., laborer, otherwise called John Baldwin, late of, etc. Thereupon proof of one will sustain the allegation.”

From 1 ChiEty’s Criminal Law, p. 203, we take the following:

“It has been holden that a defendant cannot be described with an alias dictus of the Christian name, but a man may be described by a second surname, if laid under an- alias. * * * But if the defendant plead misnomer of his surname, the prosecutor may reply that the defendant is known as well by one name as the other, though it is said to be the best and most usual practice to allow the plea, as the defendant must set forth his right name therein, and a new and more regular indictment may be immediately preferred against him, and be will be concluded by his own averment.”

It is also said in a note that the doctrine that an indictment alleging two Christian names, one being under an alias, is unsound for, “admitting that a person cannot have two Christian names at the same time, he may be called by two such names, which is sufficient to support a declaration or indictment.”

The evidence was conclusive that prior to the homicide, the appellant lived in Brown-wood with a woman named Myrtle Chambers, to whom he was not married, and that he went by the name of George H. Scott and she as Myrtle Scott. Willie Carter, her brother, was a member of the family. A short time before the homicide appellant and the woman went to Port Worth together. She went to Oklahoma, and he, according to the state’s evidence, returned to Brown-wood. The homicide took place in the absence of the woman, and, according to Willie Carter, the deceased was killed by the appellant in the house in which appellant lived.

In the development 'of the case it was essential that the fact that the appellant went under the name of George H. Scott be proved. It would have been admissible whether charged in the indictment or not. The statute does not, in terms, apply to a case where the accused has two names, or has actually gone under two names. It being relevant, in this case, to prove that the appellant went by the name of George H. Scott, we are of the opinion, in view of the authorities cited, that there was no error in refusing to eliminate the alias from the indictment.

There are several bills of exceptions reserved to the admission of testimony • which are not prepared in a manner to require consideration, in that they depart from the mandate of the statute, which says that, in preparing a bill of exceptions—

“the objection to the ruling * * * shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible.” Revised Statutes, art. 2059.

This court has, on various occasions, expressed the opinion that transcribing the stenographer’s notes in question and answer form was not a compliance with the law prescribing the requisites of a bill of exceptions or statement of facts. Ferguson v. State, 83 Tex. Cr. R. 273, 202 S. W. 733; Mooney v. State, 73 Tex. Cr. R. 121, 164 S. W. 828; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W, 370; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959.

The bills of exceptions mentioned consisted of the transcribed notes in question and answer form. We have, in view of the character of the case, read the bills, in one of them complaint is made of the testimony of the wife of the deceased to the effect that her husband failed to appear at his usual time on the evening of the homicide to take supper with her and her children, and that she failed to find him at his place of business or elsewere. We think this testimony was not subject to the objection urged. The deceased was a keeper of a garage. He lived with his family in the town of Brownwood. On the morning of the 19th of the month his corpse was found, bearing evidence of violence, about 7 miles from Brownwood. 1-Iis automobile was near by. The state introduced evidence that on the previous evening the appellant had enticed the deceased to the home of the appellant, and there killed him, afterwards taking him to the point at which the body was found. Corroboration of the accomplice who gave this testimony was necessary. A circumstance tending to corroborate him was the disappearance of the deceased on the evening of the 18th. The testimony, we think, was relevant and competent upon this subject. That the deceased was not at his home or place of business at the time that the state claims he was killed in appellant’s home was not hearsay, but was direct evidence, tending to prove a relevant fact.

After the homicide, and during the flight of the appellant, according to the witness Willie Carter, appellant and Carter had a conversation with some parties at Buffalo Gap, and rode in wagons from that point to Abilene, Tex. After his arrest Carter was taken to the home of one Gibson, at Buffalo-Gap, and he (Carter) testified upon the stand that he recognized Gibson as one of the parties whom he met on the occasion-mentioned. Gibson testified as a witness that he saw at Buffalo Gap a man and a boy, and that they rode to Abilene, one with the witness Gibson and the other with his brother. This testimony was relevant to corroborate the accomplice, Carter, touching the flight and the presence of the appellant in Texas at a time inconsistent with his theory that he was in Alabama. In its receipt we are able to discern no departure from the rules of evidence, and have been referred'to no authority pertinent to show that it was improperly received.

The same is true, we think, of the testimony of Naomi De Haven: She resided in Fort Worth, was acquainted with the woman Myrtle Chambers, had seen her in company with a man giving his name as George H. Scott; that several days after the homicide a man and a boy came to her home together, the boy giving his name as Willie Carter and the man claiming to do George H. Scott; that she was unable to identify him as the man whom she had previously seen in company with Myrtle Chambers ; that on the occasion in question he inquired the whereabouts of Myrtle Chambers; that she mentioned to them that she had seen in the newspapers an account of the homicide at the house of Myrtle Chambers and they stated they knew nothing of it. The witness Carter testified that he took part in this interview, and that appellant was his companion. In view of the testimony of Carter identifying the appellant, and the testimony of the woman, Naomi De Haven, that the boy’s companion gave his name as George H. Scott, we think the objection to the testimony is not tenable. It tended to corroborate Carter in his statement that he and the appellant were together for a number of days after the homicide.

Myrtle Chambers, while living with the appellant in Brownwood, had purchased, on credit, some furniture. She and appellant, going by the name of Scott, had executed a note in part payment of the furniture, which was in the house occupied by the appellant. Cook, who sold the furniture, testified that on the afternoon of October 18, 1920, he went to the home of appellant to make a collection on the note; that while there he saw the appellant. The complaint of the receipt of this testimony, we think, is without merit. Appellant’s relationship with the woman was a conceded fact, and manifestly the testimony of Cook that he saw the appellant at his home on the day that the homicide took place was available to the state.

When the body of the deceased was found, there was blood on his hat; there was a blanket and quilt on the ground near the body. This was taken by the undertaker. The body was 'examined by a doctor, who was in company with the justice of the peace and others. They moved the body from under the bushes, and put it in the blanket and quilt. The doctor, in his testimony, described the wounds and condition of the body in detail. One of the wounds was a gash, 4 or 5 inches long in the base of the skull, which went through the skull; the tissues on top of the head were mashed, and the brain showing. He also described a number of other wounds about the head and face of the deceased. In view of the proof of these facts, which are undisputed, the complaint that the undertaker who brought the body in, but made no examination of it until after it reached his place of business, described the condition of the wounds, and stated there was blood upon the blanket and quilt, is without merit. All of the testimony that he gave was cumulative of an undisputed fact proved by other witnesses.

Myrtle Chambers, on behalf of the appellant, testified that she lived with the appellant as his wife; that the appellant went under the name of George H. Scott; that he had changed his name because of dishonorable discharge from the army; that she left Brownwood in company with the appellant on the 15th day of October, and went to Fort Worth; that from thence she went to Oklahoma, but appellant did not accompany her; that she left Oklahoma City on the 19th of October, and soon after she tried to call the appellant at Brownwood, and learned that her house had been burned, that the deceased had been killed, and that the appellant was" missing; that she was arrested on her arrival in Brownwood on the 20th of October, but was later released, and returned to Oklahoma City, from whence she wrote to appellant’s brother in Birmingham and was told by him that there was a reward of $4,000 offered for appellant. She also testified that, while in Brownwood after the homicide, she had entered a plea of guilty for living with the appellant, and had obtained money on a note to pay the fine. S'he also identified the quilt which was found with the body of the deceased as belonging to her. In this state of the record, the fact that one of state’s counsel asked a witness if Myrtle Chambers had pleaded guilty to living in adultery with appellant was not reversible error. The question was withdrawn upon objection. It was addressed to a matter, however, that was already in' evidence, in substance, without complaint.

Complaint is made of the admission of the testimony of the efforts of the officer to ascertain the whereabouts of the appellant after the homicide. I-Ie caused to be printed and distributed circulars descriptive of the appellant, upon which were printed his picture and finger prints, and the statement that a reward of $4,000 was offered for his arrest. The complaint, in our judgment, is not well founded. The appellant was arrested in a distant state, something over a month after the homicide. The state proved flight, both by the testimony of the accomplice and the witnesses corroborating him. Appellant proved the offer of re ward. Under these circumstances, the evidence mentioned concerning the efforts of the officers to apprehend him was not illegal. Bennett v. State, 47 Tex. Cr. R. 53, 81 S. W. 30.

Appellant was arrested on the 27th day of December. The indictment was found on the 4th day of January following. The case was transferred on change of venue from Brown county to Bell county, and the trial began on the 15th of March. On the 2d day of February appellant obtained a commission to take the depositions of eight witnesses who resided in Birmingham, Ala. The depositions were returned on the 7th day o£ March. The return of the depositions was irregular, and the officer taking them failed to certify to the identity of the witnesses. Upon these grounds a motion to suppress the depositions was made and sustained. The depositions of but five of tne witnesses were taken. The court, during the trial, permitted the appellant to introduce evidence of these five witnesses, all of whom testified to facts supporting his alibi. That is to say, two of them testified that they had seen appellant in Birmingham?, Ala., on the 20th day of October; two of them testified to having seen him there on the 19th,, and one on the 21st of the nlonth. The officer taking the depositions certified with reference to the other three witnesses that one of them was sick and the other two he understood to be on their way to Texas to give their testimony in person.

An application for a continuance was made and overruled, and complaint of it was made in the motion for new trial. The absent witnesses, it is claimed, would have corroborated appellant’s testimony on’the issue of alibi, showing that he was in Birmingham, Ala., on the 20th of October. The state meets the complaint of the action of the court with reference to the continuance with the claim that the diligence to procure the testimony was not sufficient. Some time after the indictment elapsed before the commission was taken out, and considerable time intervened between the issuance of the commission and its execution. This the appellant undertakes to explain by testimony and the introduction of letters going to show the difficulties in taking the depositions, growing out of the restrictions of outlaw in naming the officers who may, in a criminal case, take the depositions of witnesses, and also upon the failure of the Governor, upon request of the appellant and his attorneys, to appoint a commissioner to take them. Aside from these preliminary matters, however, it appears that the depositions were filed 8 days before the trial began and 12 days before it ended. At the time they were filed the appellant was charged with notice of the fact that three of the witnesses had not answered. As a predicate for delay of the trial to secure their testimony, it was incumbent upon him to show that he was diligent in his efforts to obtain it after he discovered its absence.

This was the second application for a continuance. It appears affirmatively that it would not have taken more than 36 hours for mail to have reached Birmingham. If, when the depositions were filed, appellant had taken some steps to. secure the testimony of the absent witnesses, he might have been successful. If, after taking such steps, he failed, he would at least have been in a position to insist that he had been diligent in his efforts to obtain their testimony. In the absence, however, of any effort to make use of the days intervening between the filing of the depositions and the date of the trial, or the end of the trial, to get the testimony, we are constrained to the view that he did not show such diligence as would authorize this court to declare that, in overruling the second application for a continuance, and the motion for new trial based thereon, the trial court abused its discretion. We think the case is within the operation of the rule which requires diligence in the issuance - of additional process upon learning that the first issued will not result in securing the testimony. This rule is exemplified by many decisions. See 1 Michie’s Digest of Texas Reports (Criminal Cases) p. 105; Speights v. State, 41 Tex. Cr. R. 323, 54 S. W. 595; Hill v. State, 18 Tex. App. 665; Halsford v. State, 56 Tex. Cr. R. 118, 120 S. W. 193; Neyland v. State, 13 Tex. App. 536; Longacre v. State (Tex. Cr. App.) 41 S. W. 629; Henderson v. State, 22 Tex. 593; Loveless v. State, 40 Tex. Cr. R. 221, 49 S. W, 892.

In considering the action of the trial court in refusing to grant the new trial, note is to be taken of the knowledge of the court at that time of the evidence adduced upon the trial. From appellant’s testimony, it appeared that he lived in Brownwood fox-sometliing over 2 months with Myrtle Chambers and Willie Carter; that he went by the name of George H. Scott; that on his i-eturn tq Birmingham he resumed the name of I-Iornsby. From Willie Carter’s testimony it appeared that appellant told him he was going to rob Weatherby of a diamond, and directed him to go to the place of business of the deceased and tell him that Carter’s sister, Myrtle, wanted to see him; that he obeyed these instructions, and when he reached the home of appellant Weatherby was there, sitting down,' and appellant hit him with a hammer several times; that Weatherby said, “Don’t kill me”; that after killing him appellant wrapped him in an old quilt and blanket, and the witness got a mop and tried to mop the blood off the floor. Appellant then dragged the deceased to the window, and the two put the body in the car, and then poured “coal oil” on the house, and set it afire. A neighbor heard a noise at the house at the time that Cai-ter claims the homicide took place, and he saw a man make a stroke overhead, and a bulk of something on the floor, and shortly thereafter he saw appellant at the door of the house. He saw the Carter boy, and also saw the car standing by the house for some 29 minutes, and then saw the appellant and Carter get in the car and drive away. About the time the car left he noticed smoke at the house. The witness Woods testified that he saw the appellant in the house a short time before the homicide, according to Carter’s testimony, took place. The two Gib-sons identified the appellant and Carter as having 'been at Buffalo Gap about 3 days after the homicide. To this the Carter boy also testified. Two witnesses testified to circumstances corroborating the accomplice Carter to the point that appellant was in Fort Worth several days after the homicide.

In view of the record in the case, the trial judge did not, in our opinion, abuse the discretion vested in him by law in refusing a new trial.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

That we sustained the action ■ of the trial court in overruling appellant’s motion to strike from the indictment the words “alias George H. Scott” is seriously urged as error in the motion for rehearing by appellant. We find ourselves unable to agree to this contention after more mature reflection. Articles 559, 560-567, Vernon’s C. C. P., do not apply. As we understand those articles of our statute, one who is indicted under another than his true name may suggest that fact, and thereupon the true name will he inserted in the indictment and the trial proceed. Chadwick v. State, 89 Tex. Cr. R. 531, 232 S. W. 842. Considering the matter as one of procedure generally, we are of opinion that, if such person has been going under another name than his own, and this fact exist in such connection as that it be provable as a part of the development of the case against the accused, and he be indicted under his own name, and also the other name used by him as an alias, he would no more have the right to have such alias stricken from the indictment than he would have to have removed therefrom any other allegation of a provable fact. We cannot conceive of any rule of reason upon which injury can be presumed to appellant from the fact of his being charged as George P. Hornsby, alias George H. Scott. We are deciding this question as applicable to the facts before us, and are not announcing a rule which might be applicable where there were one or more aliases stated in a case where the fact of the accused having gone under an assumed name was not connected with the proof of any issue necessarily shown in the development of the case as pleaded.

Said motion also urges that we were wrong in upholding the refusal of the con-tinuance applied for by appellant. This matter has also been seriously considered by us, but we are unable to arrive at a conclusion different from the one heretofore announced. The speedy trial of criminal cases is one of the guaranties of the Constitution, and it is desirable from the standpoint of the state as well as the accused. It was not discussed in our opinion, but the continuance refused appellant, complaint of which is now under discussion, was the second continuance sought, the first application having been presented in January, 1921, and the application for continuance upon the instant trial having been filed on March 15, 1921. It is argued against the soundness of our conclusion that no diligence was shown to obtain the depositions of the three Alabama witnesses whose testimony was not before the court; that no diligence could have secured their testimony in time for this trial. We are unable to see how appellant or this court could know such fact. As stated in the opinion, the return showing failure to obtain the depositions of said witnesses was filed a week or more before the date of trial. The trial itself occupied many days. Neither appellant nor this court could know that, if he had again promptly forwarded interrogatories to Alabama for the taking of the depositions of said witnesses, the trial court would not have postponed the cause for some days, or that the depositions might not have been taken and have arrived either before the beginning of said trial or during same.

Discussing the matter in the light of a second application, we observe that the rule in such case is much stricter. It is stated in many cases that a second application will not be granted for merely cumulative testimony. Vernon’s O. O. P. art. 609, for enumeration of authorities. Appellant had the benefit of the testimony of a number of witnesses who by depositions stated substantially the same facts as he expected from those whose depositions were not obtained. So it is also stated that no presumptions obtain in favor of a second application for continuance, and that it must be shown that the accused is guilty of no laches or neglect. Goode v. State, 57 Tex. Cr. R. 223, 123 S. W. 597; Deckard v. State, 58 Tex. Cr. R. 34, 124 S. W. 673.

Being unable to agree with appellant that the opinion of the court as originally handed down announced an. incorrect conclusion, the motion for rehearing will be overruled. 
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