¶1 In reference to the necessity of reading the indictment to the jury, and stating the plea of the defendant thereto to the jury, we deem it unnecessary to express an opinion as to whether this procedure was correct or incorrect, or, in other words, whether the failure to read the indictment to the jury, and have the plea of the appellant stated to the jury, is reversible error or not, because this question will not arise upon another trial. We concur in the opinion of JUDGE HENDERSON in all other respects. We do not wish to be understood as dissenting, but merely express no opinion upon the subject.
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Case posture Posture APPEAL from the District Court of Victoria. Tried below before Hon. S.F. GRIMES.
Appellant, by indictment found by the grand jury of Calhoun County, was charged with the murder of Louis Foster on the 2nd day of October, 1894. The indictment was returned into court in Calhoun County on the 13th day of November, 1894. On the 16th day of November, 1894, upon motion of the District Attorney, stating the statutory grounds, after hearing the evidence in support of the motion, the court changed the venue of the case to Victoria County. At the time this motion was
heard and granted, the jury had been discharged, no special venire had been ordered summoned to try the case, no preliminary questions had been presented by the defendant, and neither the State nor the defendant had announced ready for trial, nor had the case been called for trial, and owing to the fact that the term of that court did not last long enough to enable the case to be tried, it could not have been tried at that term. These matters were called to the attention of the court, and objection made to the hearing of the motion and acting upon it then, made by the defendant, but they were overruled and the venue changed.
At the first term of the court thereafter in Victoria County, exception to the jurisdiction of that court was made by the defendant, and motion made to return the case to the County of Calhoun. This motion was overruled by the court.
The case was continued for two terms by the defendant, and at the November term, 1895, it came on to be tried.
The evidence in the case shows that Sims was H.C. Clark's agent, and in charge of his ranch in Victoria and Calhoun Counties, and rightfully, as such agent and manager, in possession of the lands in Clark's pasture and the fence, upon the line of which the homicide occurred. The evidence shows that the fence which divides the lands of Louis Foster and H.C. Clark, and upon which the homicide occurred, was built in 1876 by Jacob Garner, a former owner of the pasture that Clark owned at the time of the homicide. It further shows that the fence was placed there by Garner under instructions from W.H. Allen, a surveyor of Victoria County, who had been employed by Garner to fix the line for the fence. Allen told Garner that the southwest line of his (Garner's) land was twenty varas outside the line where the fence was built, so that the fence as built left a strip of twenty varas in width outside of Garner's enclosure, and inside the pasture enclosure of Louis Foster.
Garner testified that he had held possession of all the land inside his enclosure and of the fence, up to the time he had sold the land to Regan, who sold to the Traylors, who sold to Clark, that he had also had possession while the land was owned by Regan and the Traylors, for them, and that during the time he had been in possession he had never heard his title questioned. Clark testified that he had bought the land and the fence from the Traylors in 1888 or 1889, that he had always claimed all the land in the enclosure and the fence, and had never heard his title questioned until about 1891, when Foster, having bought the adjoining surveys on the southwest of his land, or an interest in them, set up claim to a strip of land inside his pasture. It was in evidence that on one occasion, Louis Foster, Jr., the son of deceased, told Sims that he was going to put cattle in Clark's pasture, claiming the right to do so upon the ground that his father had land inside the pasture, that Sims told him not to do so until he could write to Mr. Clark, who lived in Dallas, about it. That he did write to Mr. Clark, who instructed him to allow Foster to put them in, upon condition that he (Clark) was allowed by Foster to put a like number in Foster's pasture later on in the season,
when he (Clark) might need pasturage. This was not agreed to. Louis Foster, the son, put into the pasture 100 head of cattle, or beeves, and shortly thereafter Sims turned them back into Foster's pasture.
It further appeared, that on one occasion, Clark offered to give Foster the land he claimed inside his pasture, about 300 acres, for a strip of about fifty acres, upon the upper side of Foster's pasture, which Clark wanted, so as to straighten his line of fence. This proposition was declined by Foster, who still insisted that the land inside Clark's pasture that he claimed was his and that when he got ready he was going to take it.
There was evidence that Foster had on one occasion said that the land was his, and that he was going to take it with a shotgun when he got ready, and that that thing Sims could not stop him. Also that he had used threatening expressions against Sims, about an animal that Sims had by mistake branded in Clark's brand, that belonged to Foster, but which he had almost immediately counter-branded when the mistake was discovered.
During the week before the homicide, Foster sent Peter Barnes with hands inside Clark's pasture to dig post holes along the line he claimed up to, with the purpose of removing the line of fence to that line and rebuilding it there. Sims saw the men in the pasture and ordered them out and pulled tip the posts. This was reported to Mr. Foster. Foster was killed on Tuesday. On Monday Sims met two of Barnes' hands going down towards Foster's, from Victoria. When asked their business they replied that they were going down to build the fence for Foster. Sims told them they could not build it, and that he would meet them there.
Sims was in the habit of wearing his pistol when on the ranch. Tuesday morning early, Laurence Price, Richmond Hubbard and Elijah Barnes, three hired hands of Peter Barnes, drove a wagon over to the fence. There they were met by Sims, who asked them what they were there for, and they replied that they were waiting for Peter Barnes and Mr. Foster to start to work. Soon Peter Barnes and Foster came up. Foster was armed with a double-barreled shotgun. He came to the fence post where Sims was sitting on his horse, and after greeting had passed between them, he asked the men why they were not at work. They replied that they were waiting for him to come to start them. He then told Peter Barnes to take down the fence; Barnes refused to do so. Sims told him not to touch the fence; Barnes said that if Mr. Foster would take it down he would go over. Foster then took the pincers to pull the staples, and Sims told him that he had been instructed by Mr. Clark not to let the fence be taken down or removed, and further, that if he, Foster, was not an old man, that he would show him that he could not take the fence down. According to the witnesses for the State, Foster then said, Oh, pshaw, Sims, you wouldn't, fight a fly. According to the same witnesses, Foster pulled the top staple, and was in the act of
pulling the second staple, and in a stooping position, with his hat flopped down over his eyes, and his pipe in his mouth, when Sims shot.
According to Sims' testimony, Foster took his gun from between his knees, where he had it while pulling the top staple, cooked it and poked it up in his face, when he fired his pistol.
The State's witnesses, the three colored men, Barnes, Price and Hubbard, said that Foster laid his gun down two steps away, when he went to the fence, and did not have it in his hands at all after he laid it down. The State's witnesses contradicted themselves and each other in many material points; Barnes was impeached by showing statements made by him at other times. There was but one shot fired, and Sims' horse having pulled away from him, as he dismounted when in the act of shooting, he walked to Lavaca, and gave himself up to the deputy sheriff. Sims met Williams on the edge of town, and told him that he shot Foster because Foster had tried to shoot him, and he believed that Foster did shoot. He testified that he shot Foster to save his own life. There was but one shot fired.
When the jury had been selected, the State, without reading the indictment or requiring any plea from the defendant, proceeded to introduce the testimony on behalf of the State, and continued until the State rested. The defendant then introduced his testimony and rested; then, after the introduction of a part of the rebutting testimony, the State's attorney was permitted to read the indictment, and a plea of not guilty was entered for the defendant, he having, under advice of his counsel, refused to plead. The State's attorney did not, after the indictment had been read and the plea entered, offer to introduce again, the evidence that had been heard by the jury before the indictment was read, nor was it ever reintroduced.
The dying declarations of the deceased, Foster, were proven for the State by Dr. C.F. Scott and John Clark. Before their testimony was admitted the jury were retired, and testimony heard to determine its admissibility.
Dr. Scott then stated, That he reached Foster's house at about 9 or 10 o'clock a. m., and found Foster in the wagon; had him moved into the house; examined his wound, pronounced it fatal, which statement was heard by Foster's daughter who embraced Foster, and began to weep, and Foster stated to her, 'Do not weep; all is well.' Foster died at about 1 o'clock in the afternoon. After I told Foster that his wound was fatal, he made this statement: 'Sims ought not to have shot me,' and afterwards he stated that he did not think that Sims was going to shoot.' When I told Foster the wound was fatal, he was then in a dying condition, and seemed to realize his condition. He did not express any hope of recovery or any expectation of death. He was sane; his mind appeared to be clear, and the statements made by him were not made in reply to any questions propounded to him, or in reply to any questions, but were all made voluntarily. After I had examined deceased and his wound, he being then on a mattress, so as to support him in a sitting
position, the chair was placed under the mattress, after I had told him the wound was fatal. When I made my examination, I found that the lower half of his body was paralyzed.
John Clark testified that, After Dr. Scott had examined the wound, and the chair was placed under the mattress to support him, I was about Foster's head and attending him. There were others in the room, and some one said something about Foster having had his gun. He raised up, and opening his eyes, looked at me, and said: Yes, I had my gun with me, but I had laid it down.'
The defendant objected to this evidence, because it did not lay a sufficient predicate for the introduction of the dying declarations of deceased. Because there was nothing in it to show the state of mind of the deceased or to indicate that he had no hope of recovery, and because the opinion of the physician did not supply such proof, which objection was overruled by the court on the ground that sufficient predicate had been laid; that the jury was then recalled, and the dying declarations were proven before them, as made, without allowing the jury to hear the evidence of the predicate as laid, as the same had been testified to before the court, the court holding that part of the testimony was inadmissible to go to the jury; and to this ruling and action of the court the defendant objected. Because the predicate laid was not sufficient to admit the declarations, and because the defendant had the right to have the jury pass upon the evidence upon which the declarations were admitted, as well as upon the declarations themselves. All of which the court excluded and overruled, and to which exception was duly reserved.
Exceptions were reserved to the court's allowing the State to read, as part of its rebutting evidence, excerpts from the testimony of Peter Barnes — Peter Barnes' depositions taken at the inquest and examining trials in this case. It was admitted by the court in support of his testimony given as a witness on this trial, which testimony defendant had attempted to impeach by showing contradictory statements made to other parties. Subsequent history <p>Appeal from the District Court of Victoria. Tried below before Hon. S. F. Grimes.</p> Source: CourtListener
