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alarmed. It is the hip-pocket defense, by which We obeyed this command. We could not the murderer seeks to justify under the law of have done otherwise. We think

no one, self-defense. It has received its sanction in those cases which lay down the rule that the whether he be “lawyer,” judge, or citizen, jury must judge the defendant's case from his can read this record and come to any other own standpoint; that they must put themselves conclusion, or even have it suggested thereby in his shoes, and look at his adversary just as that appellant did not have a fair and impar. he appeared to the defendant bimself at the time he fired the fatal shot; and if the deceas- tial trial, or that any error was committed ed made any demonstration, such as throwing therein which was calculated in the slightest his hands behind him, which reasonably ap- | degree to injure his rights. peared to defendant that his life was in danger, or that he was in danger of serious bodily in

As to the other complaint in the dissenting jury, and defendant then killed deceased, that opinion that the trial judge had no right to he would be justified under the law of self-deprive appellant and his friends of the priv. defense. There may be something in the abilege of seeing the jury list before the court stract theory thus laid down, and there might possibly arise such a case' wherein à party convened so that he or they could tamper might be justified, altlfough deceased was uns with the jurors and "fix" them, or where armed. But a person ought not to make any they were not wanted by him to disqualify mistake or error in regard to the meaning of them, we have but little to say. such demonstrations or movements of his ad

We have versary. In nearly every case the defendant or been taught to believe, and do believe, that his friends testify that the deceased threw his prevention is better than punishment. Our hands behind him, and this bare fact seems to Supreme Court and this court have in effect be enough to cause juries to rush with jubilant feet to the rescue of the murderer. * many times said: Now, as you jurors are the exclusive judges of "Prevention of crime is one of the objects to the credibility of witnesses, it is for you to say which the most anxious thoughts and the most that when a defendant has murdered a helpless, constant efforts of thoughtful legislators are unarmed man, and he offers proof, by himself directed, and the dealing with the steps preor his friends, that although the deceased had paratory to commission is a favorite method. no weapon himself, and although he knew that | Our Codes are full of instances of this, too the defendant was himself armed, yet he (de numerous and too familiar to need citation." ceased) actually threw his hands behind him as Dupree v. State, 102 Tex. 460, 119 S. W. 302; if to draw a pistol, which he did not have and Ex parte Allison, 99 Tex. 463, 464, 90 S. W. never had, and advanced on the armed defend- 870, 2 L. R. A. (N. S.) 1111, 122 Am. St ant to certain death; it is for you to say wheth- Rep. 653. er or not such testimony is true or false. If I

The suggestion, as we understand it, of was a juror, I should, without hesitation, say that such testimony was manufactured, and i the dissenting opinion that the court ought should promptly disregard it."

to have permitted the appellant and his In the original opinion herein, as stated, friends to have the opportunity to “tamper" we quoted literally and fully everything with and "fix" the jurors, and thereby acthat Judge Oxford said to the jury panel for quit him of a most heinous crime, of which the week. We invite a reading of it, just in there can be no shadow of doubt of his comthis connection. How it is possible for any mitting, and then forsooth punish him, or one to claim that the language of Judge Ox his friends, in contempt proceedings by fine ford in this case is anything like the lan- of $100 and confinement three days in jail, guage of Judge Thompson in the other cases, or any other punishment for the “jury fixer," we are incapable of comprehending. We does not meet with our approval. Instead, think no reasonable man, whether he be we again commend the action of Judge "lawyer,” judge, juryman, or citizen, could Oxford in preventing these crimes, and in se for one moment believe, think, or imagine curing a fair and impartial jury, and one that the language is substantially or other that had not been tampered with, nor fixed wise the same, or that the principle which in advance. Surely what Judge Oxford did would apply to one could apply to the other. and said in this respect, as shown by appel

We do not desire to discuss this question lant's bill, must have been overlooked. There further. A mere statement of the matters is no shadow of error on this point shown and a reading of the opinions are all that by the record in this case. On the contrary, could be even desired.

the very reverse of this is true. By no stat[8] Besides this, even if by any kind of ute or other law are our trial judges prohibmental gymnastics the jury panel (only four ited from preventing the jury "fixer” from of them were on the jury in this case) could getting in his infamous work. On the conhave considered wbat the judge said to them trary, the whole trend of our legislation and was a charge in this case, then we are per-“jurisprudence” makes it the duty of trial emptorily commanded not to reverse the judges to prevent the "jury fixers" tamper. cause on account of the language of the dis-ing with the jurors. trict judge, for article 743, C. C. P. as amend. We have again carefully reviewed the ed in 1913 (Acts 33d Leg. c. 138), expressly whole record of this case, and are of the commands:

opinion that no error whatever was commit"The judgment shall not be reversed, unless ted in the trial that could possibly be eren the error appearing from the record was cal. an excuse for this court to reverse this culated to injure the rights of the defendant, cause, and we are more than satisfied with or unless it appears from the record that the defendant has not had a fair and impartial the affirmance of it, as shown in the origtrial.”

inal opinion.



MENT NISI. (Court of Criminal Appeals of Texas. June 26, While evidence of flight is ordinarily ad1914.)

missible as indicative of guilt, yet a judgment 1. HOMICIDE (S 203*) EVIDENCE DYING

nisi in an ex parte proceeding against accused DECLARATIONS.

for the forfeiture of his bail bond because of Where deceased after being shot came into his failure to appear for trial, not being a final a yard and stated that he was killed, asking adjudication of any fact, was inadmissible. for a bed to die on, such statement constituted a

[Ed. Note.-For other cases, see Criminal sufficient predicate for the admission of his Law, Cent. Dig. $8 776, 778–785, 930-932; Dec. subsequent statements with reference to the diff. Dig. 8 351.*] culty as a dying declaration.

9. HOMICIDE (8 156*)—THEORY OF KILLING (Ed. Note.-For other cases, see Homicide,

EVIDENCE-PRIOR DIFFICULTY. Cent. Dig. 88 430-437; Dec. Dig. 8 203.*]

Where the state claimed that the killing 2. HOMICIDE ($_8*) - DEGREES OF MURDER was malicious, while defendant claimed that he ABOLITION-RETRIAL.

was, at most, guilty of manslaughter, and that Where accused was tried under the law the killing was on adequate cause, evidence of dividing murder into degrees and convicted of knowledge or information brought home to acmurder in the second degree, and before retrial cused concerning the prior difficulty between after reversal the degrees of murder were abol his brothers and deceased was admissible. ished, accused was still subject to conviction at (Ed. Note.-For other cases, see Homicide, least of murder in the second degree under the Cent. Dig. 88 286, 287; Dec. Dig. § 156.* ] old law.

(Ed. Note.--For other cases, see Homicide, 10. WITNESSES ($_277*)—CROSS-EXAMINATION Cent. Dig. 8 13; Dec. Dig. $ 8.*]


The term "conviction of a felony," referred 3. CRIMINAL LAW (8 126*)—VENUE-CHANGE to in the suspended sentence law, means a final OF VENUE-PREJUDICE OF INHABITANTS. conviction, and hence the fact that accused in

In a prosecution for homicide, facts held to voked the benefit of such law did not place on entitle defendant to a change of venue for preju- him the burden of proving that a former jury dice of the inhabitants.

on the prior trial of the same case had re[Ed. Note.-For other cases, see Criminal turned a verdict of gụilty, which, for some reaLaw, Cent, Dig. & 243; Dec. Dig. § 126.*] son, had been vacated; and hence it was error 4. CRIMINAL LAW ($_126*)-VENUE-CHANGE half to testify that he had been convicted on a

to compel accused as a witness in his own beOF VENUE-LOCAL PREJUDICE.

prior trial of the same case. Const. art. 1, § 10, guaranteeing accused a speedy public trial by an impartial jury, means

[Ed. Note.-For other cases, see Witnesses, that the trial judge shall not put accused to Cent. Dig. $8 925, 979-983; Dec. Dig. 277.*] trial in a county unless the circumstances and 11. CRIMINAL LAW (8 1169*)—EVIDENCE-ERconditions of public sentiment are such that the

RONEOUS ADMISSION-PREJUDICE. judge feels able to give an absolute assurance that neitber by accident nor design will any

Error in compelling defendant to testify as sentiment against accused creep into the jury convicted on a prior trial of the same case was

a witness in his own behalf that he had been box except such as is alone raised by the testi- not rendered harmless because he had accepted mony introduced at the trial.

jurors after they had testified on their voir dire (Ed. Note. For other cases, see Criminal that they had heard of the former conviction, Law, Cent. Dig. § 243; Dec. Dig. § 126.*] nor because accused had filed certain pleas be5. HOMICIDE (8 174*)-DYING DECLARATION-fore the jury was impaneled in which such prior STATEMENT BY WITNESS TO DECEASED.

conviction appeared. A statement by a witness to deceased after (Ed. Note.-For other cases, see Criminal he had been shot and while he was giving a dy- Law, Cent. Dig. 88 754, 3088, 3130, 3137–3143; ing declaration that deceased should have known Dec. Dig. 8 1169.*] better than to have gone out with defendant to

EVIDENCE RELEthe place where the shooting occurred was inad- 12. HOMICIDE (8 160*) missible.

VANCY. [Ed. Note. For other cases, see Homicide,

In a prosecution for homicide, evidence that Cent. Dig. 88 359-371; Dec. Dig. § 174.*]

some time prior thereto and subsequent to a

difficulty between deceased and defendant's 6. HOMICIDE ($ 215*) – EVIDENCE DYING brothers a witness saw defendant with a gun DECLARATION.

near a fence dividing deceased's field from that A dying declaration by deceased that “he of defendant's father was inadmissible, in the was shot down like Jobn Ross" was mere opin- absence of any evidence that defendant was ion and inadmissible.

carrying a gun with the intention of having a [Ed. Note:-For other cases, see Homicide, difficulty with deceased. Cent. Dig. $8 451-456; Dec. Dig. & 215.*] [Ed. Note.-For other cases, see Homicide,

Cent. Dig. 301; Dec. Dig. $ 160.*] 7. CRIMINAL LAW (8 1163*)-APPEAL-PREJUDICE-PRESUMPTION.

13. CRIMINAL LAW (8 351*) EVIDENCE Where an inadmissible statement of de- RELEVANCY. ceased's opinion that "he was shot down like Where, in a prosecution for homicide, there Job Ross" was deliberately introduced, and was no evidence indicating that defendant's purthere was nothing in the record to disclose what pose in going to Louisiana while on bail was its weight or effect would probably be before with intent not to return in time for trial, evithe jury, its character being such as could rea- dence that when he returned he apologized to sonably be hurtful, the appellate court was one of his bondsmen for not telling him in adbound to presume that the state, in offering the vance about his intended trip, and that he did testimony, did so intelligently and that it was not blame him for refusing to become a bondshelpful to the state and detrimental to accused. man a second time, was inadmissible. (Ed. Note.–For other cases, see Criminal

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 3090–3099; Dec. Dig. 8 Law, Cent. Dig. 88 776, 778–785, 930–932; Dec. 1163.*]

Dig. $ 351.*]

14. HOMICIDE (8158*) – EVIDENCE – PRIOR I word "peaceable" or other language of similar DECLARATIONS OF ACCUSED.

import in such connection. In a prosecution for homicide a statement

[Ed. Note.-For other cases. see Homicide, made by accused shortly before the killing that Cent. Dig. 88 614, 616-620, 622-630; Dec. Dig. he did not want any trouble with deceased, but $ 300.*]* if they did have trouble it would be serious, and he would kill out the entire crowd, and then the 21. CRIMINAL LAW (8 829*)—TRIAL-REQUESTcourt could do with him what they pleased, was


A requested charge substantially covered (Ed. Note.-For other cases, see Homicide,

by instructions given may be properly refused. Cent. Dig. $$ 293–296; Dee. Dig. $ 158.*]

[Ed. Note.-For other cases, see Criminal

Law, Cent. Dig. 8 2011; Dec. Dig. $ 829.*] 15. CRIMINAL LAW (88 680, 1153*)-TRIALRECEPTION OF EVIDENCE-ORDER OF PROOF. Prendergast, P. J., dissenting.

Reception of evidence out of its proper order is a matter within the discretion of the trial

Appeal from District Court, Cherokee court, the exercise of which will not be reviewed County; L. D. Guinn, Judge. unless abused.

Pearl Sorrell was convicted of murder, [Ed. Note.-For other cases, see Criminal and he appeals. Reversed and remanded. Law, Cent. Dig. 88 1609, 1610, 1613, 3061-3066 ; Dec. Dig. 88 680, 1153.*]

Geo. S. King, of Houston, for appellant. 16. HOMICIDE (8 158*)- EVIDENCE-INCULPA- Norman & Shook, of Rusk, and C. E. Lane, TORY ACTS.

Asst. Atty. Gen., for the State. Evidence that accused on the night of the homicide and prior to the killing obtained a box containing his pistol from a jeweler who had re- WILLIAMS, Special Judge. Appellant was paired it, and that as he received it he threw convicted in the district court of Cherokee up the box, caught it in his hands, and remark. ed that he would "use that gentleman that county of the offense of murder, and the night," was inadmissible, in the absence of evi- punishment assessed was a term of 11 years' dence that he referred to deceased and had him imprisonment. Appellant was tried under in mind as the object of the remark at the time this same indictment in January, 1912, and it was made.

(Ed. Note.--For other cases, see Homicide, was convicted of murder in the second de Cent. Dig. $8 293–296; Dec. Dig. § 158.*]

gree, and punishment assessed at 10 years' 17. HOMICIDE (8 169*)—EVIDENCE-CONVERSA- confinement, but that conviction was set TION BETWEEN PARTIES.

aside in the lower court. In a prosecution for homicide, evidence of There was an ice-cream supper at G. P. a conversation between defendant and deceased Messer's residence in the northeastern porjust prior to the killing in which defendant, on finding deceased on the back gallery of a house tion of the county on the night of July 2, where a party was in progress, asked him to 1910. The appellant, the deceased, and quite walk away a little distance that they might talk a number of other neighbors, male and fetogether, etc., was admissible. [Ed. Note. For other cases, see Homicide, on this occasion that the homicide out of

male, assembled there that night. It was Cent. Dig. $$ 341-350; Dec. Dig. § 169.*] 18. HOMICIDE (8 300*)-SELF-DEFENSE–PRO

which this conviction grew occurred. The VOKING DIFFICULTY.

deceased and appellant were each at that A charge on provoking a difficulty or time approximately 23 or 24 years old. The abridging the right of self-defense is not called deceased, under the evidence, was the larger for, unless the interview was sought by de man. Estimates giving him the advantage in fendant to provoke a difficulty, and when the meeting occurred defendant did some act or weight varying from 20 to about 50 pounds, used some abusive and insulting language to de- the appellant's weight being generally esticeased reasonably calculated to provoke the diffi- mated from 125 to 135 pounds. The deceased culty, and the act or acts so done or the language so used were used with intent to provoke some month, or possibly a little more, prior a difficulty, and, in fact, did provoke a difficulty to the homicide had an altercation with two in which deceased was the aggressor.

younger brothers of appellant. One of ap. [Ed. Note--For other cases, see Homicide,

Cent; pellant's brothers had a cut on his head as Dig. 88 614, 616-620, 622–630; Dec.Dig. $ 300.*] if he had been struck with a stick. The 19. HOMICIDE (8 300*)-SELF-DEFENSE

PRO- deceased sai

this trouble was over "the fix. VOKING DIFFICULTY-EVIDENCE.

Where deceased in his dying declaration ing of a fence.” It is not shown how, if at stated that defendant cursed him and told him all, this former difficulty concerned appellant. he would have to take it, whereupon deceased further than his two younger brothers were grabbed defendant, and, as he grabbed, defend- involved in it. Nor is it shown that he had ant hit him on the head with a pistol, and the shooting commenced in which defendant shot any connection with, or took any interest in, and killed him, such proof was sufficient to jus- it, except that some time after the difficulty tify the court in charging on provoking a diffi- between the deceased and the younger Sorrell culty.

boys the appellant, in talking about the matter (Ed. Note For other cases, see Homicide, Cent, with the state's witness J. F. Martin, stated Dig. 88 614, 616-620, 622–630; Dec.Dig. $ 300.*] to him (Martin) that he (the appellant) was 20. HOMICIDE ($ 300*)--SELF-DEFENSE IN

not going to raise any racket with him (deSTRUCTIONS.

In a prosecution for homicide, an instruc- ceased), and that he did not blame him as tion that defendant was entitled to invite de- much as he did the other crowd or crew; ceased off from a crowd to "peaceably” discuss "and then he told me that if they ever did and settle with him a previous difficulty be- have any trouble, or if I ever start, I am gotween him and defendant's brothers for any threats, etc., was erroneous in the use of the ) ing to get the whole d— business, and then For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes they can do what they please with me." This coming away from the flash while the said was after the trouble between deceased and last two shots were being fired. As to what the younger Sorrell boys, which the evidence transpired there between appellant and deshows occurred some time in the spring of ceased after they left the yard, we are con1910 and prior to the homicide in July; it fined for information to the dying declaration being no more definitely fixed. Deceased had of deceased and the evidence of appellantmade serious threats against appellant, in connection with the physical facts in the wbich had been communicated to him prior case. to the homicide. Appellant had taken his [1] When deceased came back through the pistol to a jeweler at Troupe to be repaired gate he stated to some one that he was killabout a month before the homicide, and had ed, and asked them to get him to a bed to die gone to Troupe on the day of the homicide on. This, we take it, is a sufficient general and gotten it back in good shape. On the statement of the case for the present, and we night of the homicide the appellant and de- will discuss other details in connection with ceased reached Mr. Messer's residence about the questions raised. dark, the deceased arriving first. Quite a [2] 2. The new law abolishing the degrees number of others also arrived about the same of murder was in effect, at the time of the time and disported themselves about the trial from which this appeal is had. As bepremises. One at least of appellant's broth- fore stated, the appellant had been tried once ers also attended the gathering. The house before this under the old law and convicted fronted north. There was a front porch and of murder in the second degree. By various a hall extending north and south between the special pleas and motions, the appellant proprooms, and a rear addition with a porch erly raised and presented the question that, fronting east. Shortly after arriving, appel- having been convicted of murder in the second lant walked through this hall and approached degree, and thereby acquitted of murder in the deceased, who was seated, it seems, on the first degree, and second degree murder havedge of the back porch or steps. The evi- ing been abolished by the statute, he cannot dence is not entirely in accord as to just what be tried for any higher offense than manlanguage passed between them at this time, slaughter. He presents his position on this but we will not now go into the details of subject from various angles, but all tending what was said there, or what ensued. It is to the one position as above stated. His sufficient for a general statement of the case counsel, upon this question, has filed a very to say that appellant invited the deceased to able, exhaustive, and persuasive separate step aside with him on the plea that he want- brief. This same question, however, has ed to have a conversation with him. Deceas- recently been before this court in several ed at first demurred, but finally upon appel cases. The court has taken occasion to conlant's solicitation went; and all agree that sider and discuss the same fully, and have they walked away together side by side and ruled adversely to appellant's contention on apparently upon friendly terms. They walk- the point We do not therefore now regard ed out through a side gate in the east line of it as an open question in this state. Appelthe yard fence and to a stump some 18 or 20 lant's contention in this respect is overruled. feet from the gate. They had not been gone Shaw v. State, 160 S. W. 104; Cook v. State, through the gate but a few minutes—some 160 S. W. 468; Hill v. State, 161 S. W. 120. say about five-until three shots were heard, [3] 3. Appellant filed an application for a and the deceased came running back through change of venue, alleging, in substance, that the gate saying Pearl Sorrell had shot him. there existed so great a prejudice against The three shots were in pretty close succes- him in Cherokee county that he could not sion, but there was a greater time between expect a fair and impartial trial. His afthe first and second than there was between fidavit was properly supported by compurgathe second and thir The injured party died tors, but the state filed counter affidavits in about 3 o'clock that night. He was shot once statutory form, and the issue of fact was just below the navel, and this bullet went therefore raised as to the existence or nonentirely through him and his clothes. This existence of prejudice to the extent alleged. wound caused his death. There was another The homicide occurred in 1910, and this flesh or skin wound on the front and side near trial was had during the May term, 1913. the hip, but this did not enter the cavity and There had been a former trial of this case, was not serious. There was a wound or cut which resulted in a conviction of murder in on the top of his head and a little to the left, the second degree and a penalty of ten years' and both the scalp and hat showed he had re: confinement assessed. This was in January, ceived a blow there. His clothes were on 1912. It also appears that there had been fire in front of both body wounds. There is a former application for change of venue. some divergence in the evidence as to the ex- At the last prior term of the court before tent of the darkness, but all agree that it was the instant trial the defendant was not presdark. No one except the participants was ent at a date when his case upon resetting present or saw the fatal difficulty or heard was called for trial, and his bond was dewhat was said, except one witness, who tes- clared forfeited. There are some things in tified he saw the blaze of the last two shots, the record about which there is but little, trial of the case the sheriff was called upon ment about over the county. These, the canto attach and bring to court a witness whose didate for sheriff, who had canvassed the wife was sick, and during the thus enforced entire county; a collector whose occupation absence of the husband from the home the required him to fully cover all the territory wife died. In the ensuing election an oppo- within a radius of within 12 or 15 miles of nent of the sheriff sought to make political the county seat; the third was a trader whose capital of this unfortunate incident. He had business took him all over the county. In printed and distributed generally over the addition to these were his other 27 witnesses county at least 3,000 circulars narrating the from the various precincts, as far as we occurrence, thus bringing this case into pub- can judge, of the county. They all, with one lic notice and under discussion in every pre- or two exceptions, say that appellant's case cinct and neighborhood in the county. The had been prejudged all over the county so evidence further shows that at the former far as they had opportunity to know, and trial of this case there was a large attend that they had heard it frequently and generance composed of citizens from various ally discussed; that this prejudgment was parts of the county, who were present at against him; that the court's history of court and heard the evidence and argument this case was generally known, including the of counsel in the case and the verdict of fact of his former conviction and the reports guilty with the ten-year penalty. Upon anoth- concerning appellant above referred to. er occasion, when appellant's bond was declar- To meet this the state introduced 20 wited forfeited, it appears that there was some nesses. A great many of these witnesses other case or cases set for trial, and there testified that they believed defendant could was an attendance upon court of a great get a fair and impartial trial in the county. number of citizens, witnesses, jurors, etc., Some of them said that the case, so far as from the body of the county. At this time they knew, had not been “generally discussthe rumor became prevalent that appellant ed.” But quite a number of them, if not a had intentionally forfeited his bond and had majority, upon examination showed that they fled to the state of Louisiana as a fugitive themselves were fully conversant with the from justice. It is a fair presumption and history of the case and all the steps that had fully borne out by the record in this case that been taken in it. The county attorney, Mr. these citizens who attended court upon the Guinn, who was one of the state's witnesses, occasions referred to returned to their re based his reason for his belief that the de spective homes in the remote precincts of fendant could get a fair trial “because of the county and there very naturally dissemi- the confidence I have in the citizenship of nated the news occurring at the county seat. the county, but not altogether, though." If In this connection it is further shown that this were the true test, then it is not likely several newspapers of general circulation in any change of venue would ever be needed the county published accounts of these vari- from that county. Witnesses in other counous court proceedings had in this case. None ties might also, with equal assurance, claim of these publications was bitter or unfair, this high standard of citizenship for their except possibly a short article appearing in respective counties, and thus the change of the Rusk Sentinel, relative to appellant's venue statute be abrogated. arrest after his alleged flight. The article is The county superintendent was another as follows:

state's witness, who testified he thought he “Deputy Sheriff Forest Reagan brought in could get a fair trial, but upon cross-examSaturday Pearl Sorrell, who forfeited his bond ination it developed that this witness had at the last term of the district court. When Forest goes after them, he generally gets them, been discussing the case quite freely himself, and Sorrell will have to take a longer and more and that he was sufficiently conversant from extended trip next time.”

some source with the facts to feel justified in The evidence of 30 witnesses introduced by making public the expression of his belief appellant, together with the examination of that the appellant got off light before for the jurors, which is also included in the bill ten years, and further said that was his pres. of exceptions, together with the testimony of ent opinion about it. An extended digest of some of the state's witnesses introduced up- the testimony of these witnesses would serve on this point, established the fact, we think, no good purpose. As above stated, while that appellant's case had been discussed and they in the main testify that they think the was generally known in every precinct in the appellant could get a fair trial, yet they county. The evidence shows that his former themselves show a familiarity with the case conviction was commonly and generally well and everything that had been done in the known; that his former bond forfeiture and case; that defendant forfeited his bond and alleged fugitive flight to Louisiana were his alleged fugitive flight to Louisiana; that equally well known. A statement that ap- he had been guilty of a similar offense be pellant had killed one or more men prior fore, and just such other matters as appelto the homicide in this case and was a bad lant contended were prevalent talk in the man had also gained both general circula- county. Not all of the witnesses were thus tion and credence. Three of appellant's wit- familiar with the current talk, but a great nesses showed especially good opportunity to number of them. We are of the opinion that know the general concensus of public senti- the court should have ordered a change of

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