The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-05-02
from TaYlor county.

| lrOu1 1dg1OT
J ~ The court did not err in refusing a
continuance on account of the absence
of the witnesses, Kendrick and wife. De
PENDANT claims that he could have. proved
an alibi by these witnesses. If he was
not in fact present at the killing, there
We're witnesses present at the trial who
could and would have sworn TO the fact.
He did not attempt to prove the allDl by
these Witnesses and the cogency of the
proof of guilt was such that it is not IN
| the least probable that the jury would
have believed Kendrick and wife had he
been present and testified to an abb.
| Wilson's Grim. Proc, Sec. 21S6).
(2) The mere fact that appellant, at a
former trial, had peremptorily challenged
the juror, Branch, constituted no ground
or cause for challenge on this trial. u
App, 63).
81 The testimony of deceased taken on
the examining trial was admissible in this
case. 1t tended to show that deceased
was a dangerous witness against one Bar
bee, in a cattle stealing case. Barbee was
a brother-in-law of appellant. The the
DRY of the State was that one, Hamblin,
killed deceased because he was a witness
against Barbee in the theft case, and that
appellant was acting with Hamblin in the
murder. The fact that deceased was
possessed Of knowledged of Barbee's guilt
was relevant to show the motive for the
murder.
a. Deceased Baker, testified on the eX-
aiming trial that appellant was one of
the parties who committed the assault
which subsequently resulted in his,
Bakers, death. Appellant swore on the
trial of this cause that Baker subsequent
ly expressed doubts as to whether appel
liant was one of the assaulting parties.
The witness denied that Baker had at
Il specied time and place, and i'll the pres
epce of said witness. renewed his asser-
ton of appellants guilt The State there
upon proved that this denial was false.
This impeaching testimony was objected
to on the ground that it was immaterial
and collateral.
Defendant having impeached the tes-
timony of deceased by showing contra
dictory statements, the State had the
right to show that he always made the
same statement as those sworn to by
him. The court did not err in admitting
the testimony. On the same ground it
was competent to allow Mrs. Baker to
testify that she was with deceased al
most continuously from the time of the
assault until his death and that Baker
uniformly asserted the guilt of appellant.
90 After the verdict against appellant
was returned it was discovered that one
of the jurors in the case had served a
term in the penitentiary under convic-
ton for theft. This fact was made to ap-
pear in the motive for new trial and the
action of the court below in refusing new
trial is assigned as error. 1t also appear
ed that the juror in question had been
pardoned by the governor after he had
served out the full term of his sentence.
Only legal voters can serve on juries in
this State. &C.. c. p, Arts. OBI 636
and $500.
The constitution provides that persons
convicted of felony shall not be allowed
to vote except in such cases as the legis-
lature may provide. Con-, Art. 6, Sec.
u. But this provision was not intended
to be limitation upon the pardOning
power of the governor. 1t would seem
almost unnecessary to discuss the effect
of an absolute pardon and it would APP
pear almost strange at this late day that
its effect could be thought to be otherwise
than that of complete remission of all
guilt that might attach to a conviction.
This full effect could not be restricted I'M
less the organic law itself should so pre-
scribe. a Wall. 1893; 95 U. S., 149: 16
Wall, 147; Z Pet, $50; 8 Wall, SD The
pardoned convict was a competent juror.
Judgment affirmed. Opinion by David
son r