
    JOHNSON v. STATE.
    (No. 10692.)
    Court of Criminal Appeals of Texas.
    March 2, 1927.
    Rehearing Denied April 20, 1927.
    1. Criminal law <&wkey;l 115(2) — Overruling motion to quash venire herd not reviewabie, in absence of evidence.
    Overruling of motion to quash venire because some of jury commissioners were disqualified cannot be reviewed, in absence of evidence supporting it, where judge in qualifying bill stated that averments were not supported by evidence, since, motion being mere pleading, proof would be essential.
    2. Jury <&wkey;59(3) — Acts of jury commissioners held not nullified because one was deputy sheriff and another had served on jury within six months.
    That one of jury commissioners was deputy sheriff and another was person who had served on jury within six months held not such disqualification as would nullify their action in performing duties as jury commissioners.
    
      3. Criminal law <&wkey;l 166[/2(I) — In absence of injury shown, conviction will not be reversed simply because case was called out of numerical order (Code Cr. Proc. 1925, arts. 584, 588, 590).
    
    In absence of injury shown, reversal of conviction will not ordinarily be ordered simply because case is called out of numerical order, for, while cases should be called in order in which they appear on docket under Code Cr. Proc. 1925, art. 584, trial judge has some discretion, in view of articles 588, 590.
    4. Criminal law <&wkey;62l (I) — Where accused was charged with murder and rape of deceased’s wife, trial of murder case first held not abuse of discretion.
    Where accused was charged with murder and rape of deceased’s wife, trial of murder case first held not abuse of discretion, authorizing review of action, as against objection that pendency of latter prosecution would embarrass defendant on taking witness stand.
    5. Homicide <&wkey;261 — Court’s declination of commission to disinter body without interposing obstacle to disinterment by accused held not error.
    In prosecution for murder, on accused’s motion to have body disinterred to ascertain whether range of bullet would 1 coincide with state’s theory or his own, court’s action in declining to issue commission to examine body without interposing obstacle to disinterment by accused held not error, where no evidence attempting to excuse or justify homicide was before court.
    6. Homicide <&wkey;250 — Evidence held to support conviction for murder.
    Evidence held sufficient to support conviction for murder, where defendant entered deceased’s house at night, and shot him as he lay in bed.
    7. Criminal law <&wkey;8l4(l3) — Failure to charge on presumption arising from use of deadly weapon held not error, where deceased was not shown to have possessed one.
    In prosecution for murder, failure to charge on presumption arising from use of deadly weapon held not error, where record did not show use or possession of any deadly weapon by deceased.
    8. Criminal law <&wkey;730(8) — .In prosecution for murder of one accused of rape, argument as to motive, if error, held harmless, in view of eourt!s action.
    In prosecution for murder of one also accused of rape of deceased’s wife, argument, as to motive, that defendant took deceased’s wife up road after killing, if error, held not reversible, in view of evidence, where objection was sustained, and jury told to disregard such argument.
    9. Homicide <&wkey;262 — Accused’s pistol, found in his possession when arested after homicide, held properly exhibited to jury.
    In prosecution for murder, it was not error to permit pistol, which was found in defendant's possession at time of his arrest after homicide, to be exhibited to jury.
    10. Criminal law &wkey;H 120(2) — Where witness was asked whether deceased was selling whisky, bill showing that court said, “The objection is sustained for the present,” held to show no error.
    Where, in prosecution for murder, state’s witness was asked whether deceased was selling whisky, bill showing that court said, “The objection is sustained for the present,” held to show no error.
    11. Criminal law <&wkey;394 — Defendant cannot object to testimony of witnesses who went to deceased’s home immediately after killing on ground that search and seizure statute was violated.
    In prosecution for murder, defendant cannot object to testimony of witnesses who went to home of deceased immediately after killing, on ground that search and seizure statute was violated, especially where such witnesses, before entering, saw body of deceased, and they were in house with consent of occupant.
    12. Criminal law <&wkey;406(6) — Testimony that defendant on night of homicide stated he had killed “one of the boys”.held admissible.
    In prosecution for murder, testimony that on night of homicide, and soon thereafter, defendant said he had killed “one of the boys,” held admissible as admission bearing on offense, in connection with other facts rendering it relevant.
    13. Homicide <&wkey;l63(2) — Exclusion of evidence that there was no preacher at deceased’s funeral, to show badness, held not harmful.
    In prosecution for murder, exclusion of evidence as to whether there was preacher at deceased’s funeral held not harmful, as against defendant’s contention that it was to show that deceased was bad man.
    On Motion for Rehearing.
    14. Criminal law <&wkey;l092(l4) — Complaint in bill of exception without certificate or showing of truth of objection cannot be considered.
    Complaint in bills of exception as to qualifications of jury commissioners cannot be considered, where not supported by some certificate or showing of truth of such objection.
    15. Criminal law &wkey;>600(2) — Refusál of application for continuance for absence of witness held justified, where state offered to admit what he would testify to.
    Refusal of application for continuance for absence of witness held justified, in prosecution for murder, where witness, known by same name, and having same occupation, testified, and state offered to admit that, if witness was present, he would testify to facts set up in application for continuance.
    16. Criminal law <&wkey;330 — In murder case, state did not have burden to disprove exculpatory statements of its witness, brought out on cross-examination.
    Eailure of court, in prosecution for murder, to instruct that burden was on state to disprove exculpatory statements of state’s witness, held not error, where such statement was brought out on cross-examination by defendant’s counsel.
    Appeal from District Court, Cherokee County; C. A. Hodges, Judge.
    Felix Johnson was convicted of murder, and he appeals.
    Affirmed.
    Wm. Emerson Stone, of Jacksonville, R. C. Musselwhite, of Riesel, and Malcolm M. Guinn, of Rusk, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

Appellant and deceased were both negroes. According to the state’s testimony, appellant came to the house in which the deceased, Jesse Hanson, and his wife, Annie Hanson, resided. He was in company with a man called Flunky. The deceased was not at home at the time, and appellant was refused entrance by Annie Hanson. The door was not locked, however, and he later returned alone, and was discovered by the witness Annie Hanson, standing by the bedside. Jesse Hanson was aroused, and appellant said:

“Get up, and get up damned quick, and get your clothes on, you and your wife; I have a warrant for you.”

Deceased replied:

“Go on, nigger; I haven’t got time for any foolishness; I am sleepy.”

Appellant then said, “You take that,” and shot the deceased while he was lying in bed. The alarm was given, and the neighbors came and found the body of deceased lying upon the bed with a gunshot wound in his breast. Several witnesses testified that appellant on the same night told them he had gotten into trouble, and had killed “one of the boys." Apparently some of these statements were res gestee, as they occurred at a' very short time subsequent to the homicide, and at a short distance from the scene of the killing. At the time of his arrest appellant possessed-a .380 Colt’s automatic pistol.

In qualifying the bill in which complaint was made of the refusal of the appellant’s motion to quash the venire upon the ground that some of the jury commissioners were disqualified, the trial judge stated that the averments in the motion were not supported by evidence. The motion being a mere pleading, setting up matters of fact, proof of the averments would be essential; and this court, without the evidence adduced before it, is not in a position to review the action of the trial court in overruling the motion. However, that one of the jury comissioners was a deputy sheriff and another a person who had served upon the jury within six months was, as we understand the precedents, not such disqualification as would nullify their action in performing their duties as jury commissioners. See Benton v. State, 52 Tex. Cr. R. 360, 107 S. W. 838; Young v. State, 91 Tex. Cr. R. 511, 240 S. W. 930.

There are several bills of exceptions in which complaint is made of the, failure of the court to continue or postpone the trial. The offense took'place on the 25th of June. The indictment was returned on the 30tn of July. The trial took place on the 1st of September. According to the averments, appellant was indicted for the offense of rape upon Annie Hanson as well as for the murder of her husband, Jesse Hanson. He sought to have the trial for rape tried first upon the theory, as stated in the motion, that he was not guilty of rape, and that, on his trial for murder, the facts upon which the indictment for rape was found, would be treated as a motive for the homicide. The court declined to approve the truth of the averments in the bill, and referred to the statement of facts, from which it appears that upon the trial no testimony was introduced touching the charge of rape. It further showed that special venires had been ordered in both cases, but that in the rape case the venire had been quashed. Unless cases have been set, they should be called in the order in which they appear upon the docket. See article 584, O. O. P. 1925. The trial judge, however, has some discretion in the matter, and, in the absence of injury shown, a reversal would not ordinarily be ordered simply because the case is called out of numerical order. See Todd v. State, 57 Tex. Cr. R. 26, 121 S. W. 506; Moore v. State, 94 Tex. Cr. R. 489, 251 S. W. 1086; Payne v. State, 100 Tex. Cr. R. 241, 272 S. W. 788. The statute contemplates that capital cases may be set in advance for trial so that a special venire may be ordered and summoned. See article 588, C. C. P. 1925. The trial court has discretion with reference to the date of setting for trial. See article 590, C. C. P. 1925. As stated above, appellant requested that the rape case against him be tried in advance of the murder case. Unless there was such evidence of injury to the accused as revealed an abuse of the discretion by the trial judge, this court would not be authorized to review his action in setting the appellant’s murder case for trial in advance of the rape ease. In his motion appellant said that he desired the trial of the rape case first, as its pendency would embarrass him on taking the witness stand on the trial of the murder case. The record is utterly silent, however, touching what facts there were in the rape case and in what way the two were connected. Furthermore, no evidence relating to the rape case was introduced, and no abuse of discretion is shown.

Appellant sought a continuance upon the further ground that á witness named J. Cole was absent. It appears from this bill that after indictment he caused a subpoena to be issued for an unnained witness who was a section hand in the employ of the Cotton Belt Railroad, and a member of a certain extra gang, and went by the name of Flunky. -This subpoena was returned showing service upon a witness by the name of Collier. According to the averments of the motion, appellant expected to .prove by Flunky-or Cole that he was at the village of Wells where the homicide took place, at the time of the tragedy; “that he and appellant went to the home of Hanson for the purpose of buying intoxicating liquor; that Jesse Hanson had promised to sell him some liquor; that he had on numerous occasions bought whisky from Hanson ; that the witness Cole had on various occasions had sexual intercourse with the wife of the-deceased; that she had told the appellant and the witness to tell J. W. Boose that she would see him if he came to her house on the night upon which the homicide took place, but could not see him in a car, because she did not know where her husband was.” As we understand the record, after the return of the subpoena, which was issued for Flunky and returned with service upon Collier, appellant again -sought process for Cole, the issuance of which was ordered by the court and served. Upon the hearing of the motion, the evidence adduced showed that Cole was a transient person, and probably had gone to the state of Louisiana, where he resided. There was evidence on the trial that Collier went by the name of Flunky; that he was a section hand on the railroad; that he saw the appellant on the night of the homicide; that appellant told him that he had killed a man, and asked him to help evade arrest. The judge trying the case, in qualifying the bill, stated that he did not regard the alleged testimony of the absent witness material. We confess our inability to perceive the importance of the testimony. There is no controversy over the identity of the assailant of the deceased nor of the fact that the appellant had twice been at the home of the deceased on the night of the homicide. No defensive theory is advanced by the evidence, nor does the purported testimony of the absent witness impress us as presenting any relevant matter tending to excuse or mitigate the offense. It cannot be justly said that the presence of the witness, upon another trial, would have rendered a different result probable. In overruling the motion 'to continue, the learned trial judge did not, in the opinion of this court, abuse the discretion which was vested in him by law.

Appellant filed a motion to have the body of the deceased disinterred in order to ascertain whether the range of the bullet would coincide with his theory mentioned or that.of the state. In' the motion he averred .that the deceased was shot while standing and reaching for a gun which hung on the wall. The court heard evidence with reference to the matter, the details of which it is not deemed necessary to reproduce. The application, it seems, was filed on the 16th day of August, and the trial took place on the 1st of September. The state’s evidence, heard upon the motion, was to the effect that the condition in which the body was buried and the lapse of time would render it improbable, ' if not impossible, that the range of the bullet could be ascertained at the time of the filing of the application, which was 60 days after the homicide. Testimony of physicians was heard upon the subject, and the court determined, upon the hearing of the evidence, that the testimony made it clear that the disinterment of the body would serve no useful purpose. He declined to issue a commission to examine the body, but interposed no obstacle to its disinterment if the appellant could arrange for it. It affirmatively appears that appellant disclaimed the ability to pay the expense of disinterment and the examination. Under the facts adduced and set up in the bill of exceptions, we are of the opinion that no error was shown to have been committed by the trial judge. Appellant refers to the case of Gray v. State, 55 Tex. Cr. R. 90, 114 S. W. 635, 22 L. R. A. (N. S.) 513, in which case the inherent power of the court to cause a body to be exhumed, where the ends of justice demand it, was affirmed. Under the facts then before the court the necessity for an examination of the body was made apparent. This, however, arose from the affirmative testimony presenting a controverted issue touching the entránce of the bullets which killed the deceased as bearing upon the relative position of the parties at the time of the homicide. In the present case, so far as developed by the evidence upon the trial, the relative position of the parties is not a controverted matter. That the deceased was shot by the appellant and the wound taking effect in his breast is established by direct and positive testimony. No evidence attempting to excuse or justify the homicide was before the court. The state’s evidence .was to the effect that the deceased was lying upon his bed at the time the shot was fired. He was in his night clothes, and in bed with his wife. According to the evidence, appellant entered the house at midnight as an intruder, and shot the deceased without provocation or excuse. As the record is presented, we fail to perceive,in what manner the range of the bullet would have tended to solve any important or material issue in the case. If there had been testimony supporting the appellant’s supposed theory, the matter would perhaps come in a different light. However, in view of the qualification of the court and the decision by him upon sufficient evidence, no light would be thrown upon the range of the bullet by exhuming the body. The bill, therefore, presents no error,

The bills complaining of the insufficiency of the evidence are without merit.

The bill complaining of the failure of the court to charge. upon the presumption arising from the use of a deadly weapon, as required in some cases by statute, is without merit, for the reason that the record is silent touching the use of any deadly weapon or its possession by the deceased. The state’s testimony showed affirmatively that, at the time the deceased was shot, he was lying in bed. There is no semblance of testimony that he was using a deadly weapon. Appellant did not testify, and offered no testimony in'support of that theory.

From bill No. 9 it appears that counsel for the state, in addressing the jury, said:

“The defendant’s attorneys say that there is no motive for the defendant killing the deceased, Jesse Hanson, but what did the defendant mean when he took the deceased’s wife up the road about 150 yards from their home directly after the killing, and for which offense he now stands charged in this court under indictment?”

The appellant’s objection to the argument was sustained, and the jury instructed to disregard it. However, the bill, as qualified, challenges the correctness of the statement imputed to the district attorney, and states that the attorney did not say that the ap.pellant was charged with any offense. In approving said bill No. 9, the court refers to the qualification in bill No. 1, which is to the effect that counsel for the state in the course of his argument “only stated that the defendant caried the witness, Annie Hanson, about a hundred yards from her home,” and thus declines to certify the correctness of the bill quoting the argument imputed to counsel. He also refers to the statement of facts from which it appears that the witness, Annie Hanson, on cross-examination by appellant’s counsel testified that, when the appellant was discovered in the house, he stated that he had a warrant. She said:

“I will state that he said he was an officer long after he carried me off.”

She also stated that she was about 100 yards from the house when she came back and went to Selman’s house. It seems that there was some basis in the evidence for the remark. As the bill is qualified, it appears that there is no mention of the rape case, nor of any indictment, and from the mere fact that counsel for the state used the language which the judge certified, especially in view of the action of the court in withdrawing it, the bill is not regarded as showing error which would' warrant a reversal of the judgment.

There was no error in permitting the pistol which was found in the possession of the appellant at the time of his arrest after the homicide to be exhibited to the jury.

Bill No. 12 reflects an effort upon the part of the appellant in his cross-examination of Annie Hanson to lay a predicate for impeaching her with reference to a statement imputed to her indicating that she had had quarrels with her husband, which were the motive for slaying him. The averment in the bill is contradicted by the court’s .qualification. However, the bill fails to specify with sufficient accuracy the time and place the imputed -statement was made or the name of the person in whose presence it occurred. Moreover, the qualification states that part of the testimony which the bill says was excluded was in fact received, and refers to the statement of facts in support of this contention, which, upon examination, verifies the court’s statement. The bill fails to show error.

Bill No. 13, as qualified, shows that the appellant’s counsel asked the state’s witness, Annie Hanson, while upon the stand, the following question:

“Jesse was selling whisky around there, wasn’t he?”

The court said:

“The objection is sustained for the present.”

The bill shows no error.

Several bills complain of the testimony of witnesses who went to the home of the deceased after his wife had reported the homicide. Each of the witnesses testified to the condition of the body, the condition of the house, and gave a general description of the surroundings. The admissibility of this testimony was challenged upon the ground that it was violative of the law forbidding the search of a private dwelling without a ■warrant, and also forbidding the receipt of evidence where the search' was made without a warrant. The objection is untenable. The parties were in the house with the consent of the occupant, the wife of deceased. They were not in the house of the appellant; therefore he was not in a position to urge the objection based on the search and seizure statute. Moreover, the witnesses, before entering heard a gun shot, and saw the body of the deceased lying upon the bed. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145.

The objection to the testimony of the two witnesses by the name of Jordan that appellant, upon the night of the homicide, and soon thereafter, said in their presence that he had killed “one of the boys,” is not tenable. The statement was probably res gestae, but, whether so or not, it was an admission of the appellant bearing upon the offense, in connection with other facts rendering it relevant.

Appellant’s counsel asked whether there was a preacher at the funeral of Hanson. We fail to perceive the relevancy of this question or its materiality. Appellant says that it was for the purpose of showing that the deceased was a bad man, and that this was inferable from the fact that no preacher appeared at his funeral. As the record stands, the exclusion of the testimony was not harmful.

Being unable to procure counsel, appellant was represented by those appointed by the court. Erom the record, as well as the result of the trial, it appears that they performed their duty with commendable care, courage, and skill. A careful review of the evidence and the various bills of exception leads us to the conclusion that the appellant has been accorded a legal, fair, and impartial trial; that his rights have been fully protected; and that the verdict is but the legitimate consequence of his own act.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant has filed a lengthy motion for rehearing, but complaint is made of so many things, both of what was said and done by the trial court and trial attorney, as well as what was said by this court, as that we find ourselves with difficulty getting at the exact points contended for.

Appellant’s complaint, as set out in bill of exceptions No. 2, at the acting of the constable as jury commissioner, presents no facts supporting the complaint The same thing is true of his proposition in said bill that one of the jury commissioners was not qualified because he had been a member of the grand jury of the county, and had served more than one week during the six months next preceding his acting as such jury commissioner. This court cannot consider a complaint in a bill of exceptions that is not suit-ported by some certificate or showing of the truth of such objection.

We are also in trouble trying to understand appellant’s motion for a continuance .and his complaint in bill of exceptions No. 3. Appellant wanted the case continued because of the absence of one Cole who was commonly called “Flunky,” and was a worker on a section gang. The state controverted the application for continuance, and offered therein to admit that, if the witness Cole was present, he would testify to the facts set up in the application for continuance, but the state contended there had been no diligence. A lengthy showing is made in connection with the state’s motion of reasons why there had been no diligence. Without going" into same at length, we are of opinion that no diligence was shown. In this connection, however, we note that appellant produced a witness who testified; and said that he was commonly known as “Flunky,” and that he was working on the section at the time of this killing —on the extra gang. He said his name was Collier. Appellant did not testify, nor introduce any witness who claimed to have seen any person named Cole at the scene of the homicide. The refusal of the application for continuance was justified. No showing is made, in connection with the motion for new trial, of any matters which might have reflected upon the soundness of the refusal of the continuance.

Appellant makes quite a complaint at the failure of the court to instruct the jury that the burden was on the state to disprove the exculpatory statements made by the witness Morgan. Reference to the testimony of Morgan shows that the only exculpatory statement made by appellant and testified to by Morgan was brought out in his cross-examination by appellant’s counsel. The state did not introduce such exculpatory statement, and therefore could in no event be held bound to disprove same.

Being unable to agree with any of the contentions made by appellant, the motion for rehearing will be overruled. • 
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