*1 out time, setting length We out he felt have written at operation ap- facts died. efforts certain, have to demonstrate the almost she would pellant’s absence counsel to show the his as- appellant’s defense required proof alive that the fetus prosecutrix sociation and contact with the the time the was inserted tube social; dated her were purely that he had Tex. lant, if it Parnell v. was. Appel- her. had sexual relations with authority 506, Cr.R. is lant o’clock that it testified suf- for our holding that the evidence in- first Sunday night prosecutrix ficient in regard. this an formed him that she wanted in that abortion and him her efforts told judgment is affirmed. regard. anything to He he did denied that abortion; denied bring parts. private he inserted a сatheter in her in it.” way is no truth telling purpose served
No useful be evidence, such as fully
setting out other testimony of Arnie Williams Lima, Carolyn Douglas Leslie ASHLEY and office, prosecutrix appellant’s saw the Appellants, hard feel- relating to
ings appellant; Dr. between Williams Van Zandt’s he did not Texas, Appellee. The STATE of before, and seeing prosecutrix member No. 34351. perform an abor- did not tell her he would dollars; tion her for five or six hundred Appeals Texas. Court of Criminal appellant’s brutality police claim of June 1962. regard instruments false accusations occasion; Rehearing Denied Oct. 1962. suitable abortions on a appellant’s that he had serv- 1963. Denied Jan. Second ed a in the penitentiary term for theft bailee. fact rеsolved the issues of as to performance against of the abortion
pellant and the sufficient evidence is to sus-
tain their verdict. formal bills of ex- contains no
ception exceptions relating the charge or court, and the informal bill of obviously
exception is without merit. represented by
Appellant was counsel at trial, his motion for new trial but by appellant, appeal, signed
his brief obviously prepared aby lawyer fact, in the law. In versed in his
or complains attorney of his
brief preparation trial, his case for
and of matters not before this other Court
for review. *2 Houston, Lloyd Knight, W. M. Jack
Lunsford, counsel, on Houston, South appeal, Clyde Woody, Houston, on W. hearing only, for Briscoe, Atty., Frank H. Dist. Samuel Robertson, McKay, Assts. Jr., and Neil Houston, Atty., Douglas, Dist. and Leon B. Austin, Atty., State’s the State. BELCHER, Commissioner. Douglas Ashley Carolyn Leslie jointly tried and convicted for malice; pun- offense of murder with ishment assessed for each pellant, death.
The state’s that when shows City officers of Houston arrived a on the extinguish vacant lot to a fire February 1961, they discovered body, a burning, almost male later nude An identified as that of deceased. autopsy gasoline revealed that had been poured de- ignited after the ceased had been killed as a of be- result ing pistol. shot six with a .22 caliber times Further state revealed parking were seen entering old Packard auto and the deceased’s duplex office side aof P.M. on of the shoot- ing. occupant About 6:30 of the duplex, employee other side of the deceased, scuffling heard some noise and in the sounded like deceased’s office which fight, a a also an unusual noise like However, shot. did not become she morning alarmed until next arrived for work at the blood at and on the entrance floor. investigation premises by
An police revealed blood both in and outside office; tire tracks across the side- office; Ashley a week. deceased while first met the leading the door of the walk woman, intro- disguised Lin- but later was portable television missing. duced as Lima’s brother. The unexplainably coln automobile *3 a subsequently Ashley be suggested that to the police investigation led Further three-way sex- perverted, of a act of covery articles of of various deviation, ual the and on in scat- clothing which had been discarded pellants engage went to deceased’s office city, and the tered locations discussing in these acts with parked with- him. While lant’s Packard old stuck Ashley’s matters, lightly these sordid tags at the home of out license and appellants “bayonet”, both with his parents. Ashley proposed when deceased and estab- of other witnesses engage very sodomy in acts he became appellants purchased a had lished angry Ashley and refused. cursеd when days prior pistol shooting; two partially The deceased and dis- Lima then ditch; they had seen it into a firing been sodomy robed committing and had been slugs and that these were recovered and es- on each other when the deceased started tablished to have been fired from the same “getting rough” private and tearing weapon that killed thе deceased. It parts. began crying When Lima out Ash- further shown that at about 7:30 ley intervened and hitting deceased started February 6, purchased gasoline Lima had choking and During struggle him. can, gallon in a five which she did not Ashley pistol got purse out of Lima’s return; that this was the same can which and fired one shot dropping before it. De- body; was found near the burning and that grabbеd “bayonet” ceased started and about 10:30 P.M. of the same swinging appellants, it but Lima man- appellants had filled the deceased’s Lincoln aged grab pistol and fire the remain- gasoline, put with the Packard license ing five shots which felled the deceased. plates on it. dead, determining After deceased was The state then introduced trac- they panicky became but did manage to ing flight appellants from New wipe fingerprints the blood and off of the Orleans, they spent night, where “bayonet”. Then, when their Packard Maryland finally City to New York start, they would not backed deceased’s Ashley, where was dressed who office, Lincoln to the front door woman, apprehended as a were on Febru- bоdy seat, pushed loaded back into the 26, 1961, by ary Agents. Federal The de- Packard, off went to the home of Lincoln, ceased’s to which Lima had the parents. Ashley’s Ashley’s parents cor- keys, was recovered and obtaining after Ashley roborated that was bruised and appellants’ consent, apart- a search of their bleeding and that Lima had cuts and bruises set, missing ment revealed the television a they arrived, thighs on her when and that box of .22 caliber cartridges, and the de- appellants they said that had been in ceased’s wrist watch. fight happened. when asked Lima, Appellant prostitute, an admitted appellants they then related that Appellant Ashley, an admitted homo- clothing threw the decеased’s in various sexual, open both testified and in court ad- dumped parts city, and set mitted the deceased but contended it, put plates fire to the Packard license they did so in self defense and in de- Lincoln, began flight fense of each other. City. their arrest in New York with ended appellants they testified that they both testified that together in Decembеr living during strug- their lives began Lima met the deceased and in fear of having were office, in his and that paid gle sexual relations with him the deceased about once they gone only his office for the court erred in refusing grant a mis- they perverted purposes but following outcry that when of deceased’s others during realized widow how this would look argument by appel- they “panicked” further lants’ They and fled. counsel.
testified that deceased’s the various items of The bill recites that while property they knew taken counsel was presenting they flight, money would need for their following occurred: did know $115 “ found where billfold until * * * Appellant’s Counsel: don’t it had fallen on floor the Lincoln. *4 you they know that would have had pistol The аppellants also testified that the - every member (de- purchased had been with because of trouble ceased’s) family say, to why certainly boys teen-age appellants with whom the not, Daddy came home at 6:00 o’clock acts, had been engaging in various sexual that evening and he had a cocktail and policeman and a he had corroborated that put he on his and he houseshoes ” appellants’ apartment been called to the * * * watched television 3, about trouble because of Deceased’s (speaking Widow from there. among the spectators) courtroom : certainly did; “And he he with was they The contention that me at the Ben Milam Hotel.” killed the deсeased in self and in defense properly defense of each other was sub Appellant’s please Counsel: “If it them, jury, rejected mitted to the but Court, we for a move mistrial on the and support the evidence is sufficient to outcry.” basis this verdict. The Court: “Overruled.” appellants urge The error because of the Appellant’s Counsel: “And note our рortion telephone of a of a con- exception, please.” versation between the deceased and his objection wife hear- over it was court, request, trial without imme- say prejudicial. and diately jury disregard instructed the to any purpose and statement the incident for portion complained of occurred That whatsoever, promptly bailiff es- when the wife arrived home work from deceased’s widow from corted court- P.M., telephoned at his bill, spectator According room. away, blocks office two told “spoke barely out in a voice which was figure having her “to dinner at 6 o’clock”. audible”, words and “the used entirely discernible not court”. testified that the deceased thirty occurrence lasted some seconds using telephone they was arrived was resumed and concluded P.M., at his at 5 stated that interruptions. further without about 6:30 ten left minutes after both admitted. held in Court Guse This S.W. objected The statement was not injury to the probability of es used, inculpatory and, as not itself rea jury’s verdict be vitiate sential sonably prеjudice rights calculated bystanders. In the conduct of de cause error No reversible termining probability, such each case de shown. pends Long on its own environments. Tex.Cr.R., 103, 555; By exception, formal bill strenuously lants contend 1 Branch’s Ann.P.C.2d Sec. 400. trial purse automobile in her when arrested case shows in this The record purse emptied did not later when her statеment the context of the widow’s during Agent relat a desk interview appellant’s contradict Reuther, ob- identify she was them asked to ing to certain between activities consisted, jects objects in the on the These desk. the deceased at the time mentioned among things, keys, and acted other several Further, court argument. the trial pointed keys, out аnd certain to con identified promptly and instructed saying they keys cir were the to deceased’s of these In view sider matters. Lincoln automobile. cumstances, appears no reasonable there er probability injury, and reversible Agent evidence shows that Reuther ror is shown. keys purse first saw the when Lima’s by Appellants complain of the refusal emptied arrest, on the desk after her the wit- testimony of court then had no Billingsley concerning the ness keys belonged. keys automobile the These reputation for chaste character. were subsequently the ignition fit *5 of Lincoln automobile. This evi- the showing no of There is dence is sufficient to show that the Lincoln would Billingsley answer of the witness had recently аutomobile been under the con- testify. permitted been had been possession trol and in the of the Hence, no error is shown. lants. Appellants complain the also of Art. 727 Vernon’s Ann.C.C.P. author testimony relating court’s refusal the ized admission of such oral statements specific to a act of sexual “when are found to be true and con by the deceased. duce to guilt establish the of the accused”. been in specific This statute has construed proof Valtiero is no that the There State, Tex.Cr.App., v. as inquired and influ 219 S.W.2d about was known to act the of authorizing introduction oral appellants in enced the the deceased. confession of the accused as to where the The refusal its in evidence was admission abouts hat of the deceased when the not error. had already been It is insisted that the trial court erred in by There, the officers. this Court admitting the oral statements made said, officers knowledge “The no Reuther, Agent Lima to F.B.I. (the hat’s) its whereabouts.” The officers York, in New after arrest that the case at bar had no con at trouble deceased’s office was caused continues, cerning keys. opinion physical assault, blackmail, or insult. either present here demonstrate that facts predi- proper that Appellants contend no may be facts and circumstances stated authorizing admission cate was laid unquestionably an accused which incul- are the offiсers the oral al- statements patory guilt, and conduce to establish his ready had Lincoln automobile yet recovery neither lead to arrest. possession to Lima’s property, or stolen the instruments offense was committed.” See apparent From record it is that State, also Hamon 135 Tex.Cr.R. were a oral of the same statements 1057; Tex. Mohler v. 98 Agent in which Lima told conversation 553; Cr.R. Ortiz keys to the Lincoln auto Reuther 524, 151 S.W. 1056. and, for the reasons set forth be mobile admissible. low, became and circumstances of this Under the facts complained case, Testifying trial, oral statements Lima stated ot evi- keys authorized be admitted into had the to deceased’s Lincoln 852 dence, ad- error refleсted in their objection While telephone hearsay
mission. conversation being taken, that, well we remain convinced judgments are affirmed. under the presented, the admission of such does present evidence reversi
Opinion approved the Court. ble error. Proof that the deceased indicat
ed in telephone conversation with his wife o’clock, at p. m., 5 be Appellants’ On Motion home m., around o’clock, p. 6 did not con trovert appellants’ theory defensive DICE, Commissioner. they went deceased’s office at o’clock, p. m., to fulfill a prearranged sexual we in error Appellants insist that date. proof There is no the sexual holding that in evidence our the admission date would be duration that it could telephone portion of that conversa- not have completed been and the deceased and his wife tion between the deceased be at his o’clock, home p. around 6 m. Fur m., p. o’clock, thermore, that the deceased indi wife in which deceased told his killing, cated to his wife in telephone conver o’clock,” dinner at figure having “to sation that he would be home around hear- objection same was over the o’clock, p. m., may have been beneficial prejudicial, say did not constitute supported and have their defen Appellants error. insist versible sive theory went of such constituted re- evidence *6 fulfill the prearranged date, sexual in that presented to the because it versible error it could be construed as an by which effort on de the deceased statements made keep ceased’s coming his wife from unknown to his very of their defense office while the being struck at the heart sexual date was for went consummated. a sexual date. purpose of hаving Appellants further insist that in we were contention, appellants support of holding In their that, error in facts, under the no early Brumley rely upon the case of v. probability injury of was shown as a result State, Tex.App. 222, 17 where S.W. the outcry widow, of the deceased’s proof of the deceased’s un- it was held that made during appellants’ in being reason оr motive where disclosed counsel. As original shown in opinion, our was, going or in to the scene of appellants’ while counsel was arguing homicide, an against is not admissible ac- if were Saturday not true that on affect it tends to his defensive killing cused where Monday before the on the deceased by appellants theory. is appellants, Reliаnce also was with the members of the upon recent Marshall family case Tones said he came 625, where 168 Tex.Cr.R. evening, home at o’clock that she stated: proof condemned this court did; similar was certainly “And he he was with me at supra. holding Brumley, In under the in Appellants the Ben Milam Hotel.” espe- brief, appellants their that under cially concede take task us to for the statement in exception proof rule, opinion: of move- our in this case deceased not ments known to a de- shows that the context of the widow’s state- merely which is explanatory appellants’ fendant of his ment did not contradict the tes- presence at the scene of the timony killing relating ad- to cеrtain activities between proof missible where does not affect a them the deceased at the time men- theory. defensive See: Bazanno argument.” Appellants tioned fur- point 777. to certain ther the record killing dis- way in no Saturday night effect on puted. question them the deceased apartment go did such occasion dis- proper Remaining convinced Carolyn Lima. relations with to have sexual opin- position case in our was made of submission, for the motion original ion on adduced such was the evidence While subject is overruled. opinion rehearing in our and the statement correction, we convinced that remain Opinion approved the Court. record, outcry, doеs widow’s under the convictions. a reversal of call Ben
Whether the deceased wife, with his or with
Milam Hotel kill-
pellants Saturday night before the upon the
ing, bearing such had no direct of self-defense
actual the issue Appellants interposed by parte B. DROPPLEMAN. Ex William shooting admitted the deceased No. 35235. only defense was self-defense. that of outcry bearing upon such no widow’s Appeals Texas. Court of Criminal injury clearly, probability and, issue 7, 1962. Nov. is shown. Jan. 1963. Denied remaining again We overrule refusing contention that erred in the court relating them offered specific
to a act of sexual original in our deceased. As stated
opinion, spe- there was no inquired in-
cific act about was known to or *7 appellants in de- killing
fluenced the case of Newchurch v.
ceased. 998, sup- Tex.Cr.R. S.W.2d
ports excluding court’s action testimony. sup-
The authorities cited
port of their contention that such support
was admissible to corroborate and theory claim that the sexual aggressiveness
deceased are not here In the controlling. cited it was
cases shown that the accused ei-
ther prior similar act seeking
and was to corroborate such knowl-
edge, disputed or there was a as to issue
whether the deceased committed the act or upon
acts relied as basis accused’s
defense, at the Here, time of the killing. any
there was
knowledge of act of ag- sexual
gressiveness of the deceased and their tes-
timony to his sexual