Cordway v. State

1. Practice—Continuance—Diligence—New Trial.—A continuance is properly refused if the application therefor shows a want of diligence to secure the absent testimony. But see the opinion on rehearing to the effect that, notwithstanding inadequate diligence to secure the testimony in the first instance, a new trial should be granted when, as in this case, the absent testimony, in the light of the evidence on the trial, becomes material to the defense and is probably true. 2. Perjury—Evidence.—The perjury assigned against the accused was au alleged false statement made by him as a witness for the defense on the trial of one C. for the murder of one J. The State was permitted to introduce in evidence, the statements of the accused as a witness at the inquest upon the body of the said J., and also his subsequent statement to one H. with respect to the killing of J. by C. Held, that the evidence was competent as bearing directly upon the falsity of the statements upon which the perjury was assigned. 3. Same.—The State having proved that, on the day after the killing of J. by C., the accused told one H. that J. was unarmed when he was killed by C., the defense proposed, but was not allowed to prove, that two or three days subsequent to the homicide he told one McM. that J. had a pistol in his hand when he was shot and killed by C. Held, that exclusion of the proposed evidence was correct. 4. Practice—Exceptions—Charge of the Court.—A general exception to the charge of the court, which fails to point out specifically the errors complained of, will not be considered by this court on appeal. 5. Same—Privilege of Counsel.—See the statement of the case for remarks used by the prosecuting counsel in his closing address to the jury, held not to constitute an abuse of the privilege of counsel in argument, inasmuch as they were called forth and authorized by the argument for the accused. 6. Same —Jurisdiction of the District Court—Case Stated.— The perjury assigned in this ease was alleged to have been committed on the trial of one Coy for the murder of one Jackson in Wilson county. Soon after the killing of Jackson, Coy killed one Elder, in Karnes county, and fled to Mexico, whence he was extradited for the murder of Elder, but not for the murder of Jackson. Coy was then indicted and put upon trial in Wilson county for the murder of Jackson, which trial resulted in a mistrial. No objection nor plea to the jurisdiction of the district court of Wilson county was interposed upon the trial for the murder of Jackson, but, soon after the mistrial. Coy sought his discharge by the writ of habeas corpus upon the ground that, not having been extradited for the murder of Jackson, he was illegally restrained of his liberty upon the charge of the murder of Jackson. Upon the hearing of the writ it was adjudged that the district court of Wilson county had no jurisdiction to try him for the Jackson murder, and he was discharged from restraint under that charge. The contention in this case is that the district court of Wilson county, having no jurisdiction to try Coy for the murder of Jackson, the accused did not, and could not, commit legal perjury on that trial. Reid: 1. The district court of Wilson county had jurisdiction of the subject matter of the prosecution—murder— against Coy. 2. It did not have jurisdiction over Coy’s person to try him for the murder of Jackson, because he was not extradited for that particular murder. 3. Jurisdiction over the person is a matter subject to the objection or waiver only of the person over whom it is being or is sought to be exercised. 4. If such person submits to the jurisdiction of the court over his person, and to trial, without objection, he waives his privilege, whatever it may be, and the proceedings of the court trying him, at the most, are merely voidable, and voidable only at his instance, and can not be questioned by any other person. 5. The trial of Coy for the murder of Jackson was a legal proceeding, and the court trying him was a court of competent jurisdiction for the purposes of this case. Wherefore the contention of the defense is not tenable. 7. Perjury—Pact Case.—The credibility of witnesses must be determined by the jury alone, who are likewise charged with the duty of solving conflicts of testimony. See the statement of the case for evidence which, though conflicting, is ample to support the finding of the jury. But note that, on rehearing, a new trial is awarded in view of the evidence on the trial, and of the materiality and probable truth of absent testimony on account of which a continuance was asked and refused.

Appeal from the District Court of Wilson. Tried below before the Hon. George McCormick. The perjury alleged in this case was that on the trial of Juan Coy, in the district court of Wilson county, Texas, for the murder of James Jackson, the appellant, as a witness in behalf of the said Juan Coy, falsely testified that he was present when the said Coy shot and killed the said Jackson, and that, when the said Coy fired the fatal shot, the said Jackson had a pistol in his hands. The penalty assessed by the verdict was a term of five-years in the penitentiary. The State first introduced in evidence the indictment against Juan Coy, charging him with the murder of James Jackson in Wilson county, Texas, on the twenty-seventh day of June, 1886, and the judgment of the court showing the discharge, because-of disagreement, of the jury which tried the said indictment. John E. McMullen was then sworn for the State, and testified that he was the district clerk of Wilson county, Texas, in December, 1886, when Juan Coy was tried in that county for the-' murder of James Jackson. As such clerk he administered the legal oath to the defendant as a witness for said Coy on that trial. R. B. Jones testified, for the State, that he was a member of the jury which, at the December term, 1886, of the district court of Wilson county, Texas, tried Juan Coy for the murder of James Jackson. He remembered distinctly that the defendant in this case was sworn and testified on that trial as a witness for Coy. He testified that he, Cordway, was present when Coy killed Jackson, and that Jackson, when shot by Coy, had a pistol in his hand. W. O. Murray testified, for the State, that he was a member of the jury which tried Coy for the murder of Jackson. This defendant appeared as a witness for Coy on that trial, and testified substantially as follows; “I was present when Juan Coy killed James Jackson, and saw the struggle that took place between them. Coy had one of his arms thrown around the neck of James Jackson, and James Jackson had one of his arms thrown over Coy’s shoulder, and James Jackson had a pistol in his other hand at the time that he was killed.” The State next read in evidence the testimony of the defendant at the inquest upon the body of James Jackson, as reduced to writing when delivered. It reads as follows: “John Cord-way sworn, says: 61 do not know how the dispute came up. I came up just after it begun. I think Monroe Toodles and Tonias Lopez were the ones who were disputing. Then Coy spoke in favor of Lopez. The deceased then spoke up and asked him if he took it up. He said he did. Deceased then remarked: Tf you do, I will fix you; I have a gun for you,’ and started towards it. Coy then went after him, and as he went he pulled out his pistol, and caught deceased, I saw his pistol in his hand, and went up and caught hold of it. Just as I caught the pistol it fired and killed deceased.’” A. R. Stevenson testified, for the State, that he was the county attorney of Wilson county at the time of the inquest over the body of James Jackson, and conducted the examination of the witnesses, at that inquest, on behalf of the State. After Cord-way had testified on that inquest as set out above, and after he had signed his said testimony, and had started to leave the room in which the inquest was being held, the witness asked him, Cordway, if Jackson was armed at the time he was shot and killed. Cordway replied that Jackson was not armed at that time. This latter part of the testimony of Cordway was not written down. The said inquest was held on the day after the killing of Jackson. H. B. Gouger, constable of the precinct, testified that he was present at the inquest upon the body of Jackson, and heard Cordway tell Stevenson that Jackson was unarmed when Coy shot and killed him. Monroe Toodles was the next witness for the State. He testified that he was present on the race track at the time that Jackson was killed by Coy, and saw all that occurred at that time. He went to the track to attend the race with Jackson. A dispute about the result of a race, and the disposition of certain moneys bet on it, arose between Tomas Lopez and somebody else. Coy hearing the dispute, interposed in favor of Lopez, when Jackson asked him if he proposed to "take up the quarrel. Coy replied that he did, when Jackson, remarking, “I,will go and get my gun and fix you,” started off towards a point fifty or sixty steps distant, where he had left his gun. Coy .followed and caught Jackson around the neck and shot him. Witness, who was within four steps of the parties when the fatal shot was fired, saw the pistol in Coy’s hand, and saw that Jackson not only had no pistol in his hand, but had none about his person. After shooting Jackson, Coy fled. Witness ran at once to Jackson’s gun, seized it and tried to stop and hold Coy until officers could be summoned. He failed to do so, though he fifed at Coy and was fired at by Coy, who continued his flight. Witness then went to the body of Jackson, but neither found nor saw a pistol on, about or near his person. Quite a large crowd of people were at and near the place of the killing. -Bolds testified, for the State, that he saw the shooting of Jackson by Coy. He was on his horse, about thirty feet distant from the parties when the shooting occurred. He saw the parties scuffling and struggling with each other. Coy had a pistol in his hand and finally shot and killed Jackson. Jackson had no pistol or other weapon in his hand that witness saw7, and witness was satisfied that if he had had a pistol in his hand, he, witness, would have seen it. Witness observed the parties closely, because his position with reference to them was a precarious one. R. W. Hubbard, testified, for the State, that he met the defendant in Moresville, on the day after the killing of Jackson by Coy, and asked him about the particulars of the killing. Among other things, defendant said that Jackson had no arms when Coy killed him. The State closed. Tomas Lopez testified, for the defense, that he was present at the race track and saw the killing of Jackson by Coy. The row came up about a bet. Witness saw Coy at the time he shot Jackson. Cordway had hold of Coy’s pistol when the fatal shot was fired by Coy. Jackson, at the same time, had a pistol, eight or ten inches long in his hand. When Jackson fell, after he was shot, the pistol fell from his hands into the weeds overgrowing the ground. Quite a number of persons were near Coy and Jackson when the fatal shot was fired. The witness was absolutely positive that Jackson had a pistol in his hand at the time he was shot and killed. Witness was not summoned to appear, nor did he appear before the inquest upon Jackson’s body. Witness was the Lopez mentioned by the witness for the State, and was interested in the horse race. Julio Garcia testified, for the defense, that he was on the race track when Jackson was killed by Coy. He passed near Coy and Jackson while they were quarreling, and he thought, though he could not swear, that he saw both Coy and Jackson throw back their hands to draw pistols. He saw a pistol in Coy’s hand, but did not see any in Jackson’s hand. On cross examination the witness said that he saw both Coy and Jackson have hold of Coy’s pistol, but he saw no other pistol. Quite a number of witnesses for the defense testified that they were familiar with the reputation for truth and veracity of the defendant Cordway, and that of the State’s witness Toodles, and that the reputation of Cordway was good, while that of Toodles was infamous. The matter referred to in the fifth head note of this report is set out in the bill of exceptions as follows: * * * “the district attorney, in his closing argument to the jury said: ‘One of the defendant’s attorneys has said that the evidence of the State is not sufficient to warrant the jury in convicting the defendant, and that, if the jury does convict the defendant, the Court of Appeals will set the conviction aside. I say that the State of Texas has no remedy if you acquit the defendant, and I ask you to convict the defendant and give the Court of Appeals a chance to reverse the case.’” The motion for continuance set out that defendant expected to prove by the absent witnesses, Sandoval and Juan Cordway, Jr., that they were present and saw the shooting of Jackson by Coy, and that Jackson had a pistol in his hands at the time he was shot and killed by Coy,