*1 23 Arresting testimony. gave corroborating officers others Appellant time, denied that he intoxicated at the corroborating testimony. offered appellant’s guilt
The issue of presented thus was for the jury’s consideration and determination. judgment
The is affirmed. Craig
Dee v. State 31,090. 9, December No. 1959 10, Rehearing February State’s Motion for Overruled 1960 Rehearing State’s for March Second Motion Overruled WOODLEY, Judge, dissented.
Percy appel- Williams, Holvey Houston Foreman and lant. J. Attorney, Barber, P. Hart, Grange, District La Wallace San Marcos, Austin, Attorney, Douglas, and Leon State’s
the state.
MORRISON, Presiding Judge. fifty years. murder; punishment, offense is of the disposition our case a recitation this facts will witnesses, necessary. There were no save appellant, shooting his wife’s and his defense was that death was the result of an accident. *2 White, Dudley testified witness, Ranger principal The state’s in in chief making its case out prosecution
while to shooting talked he investigation course of his by the During his examination occasions. appellant on several transpired: following attorney the district October Elgin or about in on “Q. you him talked to When you, to statement make this defendant did him? may asked you have any questions response in to A. He did. between place took
“Q. jury just what conversation Tell the he any statement defendant, starting with you and this A. any question. response to voluntarily made talking I and were sheriff This was at the time At 18. Texas, about October Elgin, on or to him in Austin to ago, come to, agreed I a while time he as stated eliminate way—help tous help put it that us—I will up might mixed he like him on all this that looked changed refused, in, particular time he said but at this what said, ‘You know stated, he mind. He further his they saying this are at time?’ ‘No, is it?’ said, I no What I have idea. killing Elgin said, ‘They accusing here me are He my first wife.’ say!’ you said, ‘Oh,
I the heck completely object It is going to that. I am “MR. JONES: case. place in this immaterial, no Your Honor. has Objection overruled. “THE COURT: exception. our “MR. JONES: Note they dig up and find said, her ‘Suppose that do “A. And he I her, mean that did it.’ poison in that doesn’t my objection. place no It has I to renew “MR. want JONES: case. this Objection “THE overruled. COURT: exception. our “MR. JONES: Note investigated. right, have to be says, ‘Well, that will
“A. time, at this any investigation as to that made We haven’t your wife.’ in reference to first feels State defendant’s
“MR. BARBER: agree will testimony, the State proper but it is withdraw it. agree to have it withdrawn. I don’t
“MR. JONES: stay. it to *3 like for would “MR. BARBER: Then the State my against it. press “MR. bill JONES: will counsel, we by appellant’s made the statement withdrawn. testimony been will had view as if the the same if evidence however, that the confronted, We the rule are with then any purpose, obviously for is hurtful and not admissible by withdrawal. the cured a error in will be its admission State, 424; 1 v. ed., 403, p. Ulmer Branch Ann. 2d sec. P.C. 2d, sec. 245; 106 Rep. Tex. 5 Tex. Juris Cr. 292 S.W. p. 695. wife, killing the his
Here on trial for we have an accused proof of state’s rests on the purely case is circumstantial the death contradictory of by after the accused statements made wife, introduces evidence and the state is charge was which only for apprehensive about the being prosecuted investigated and be tried that he will but also fears killing. wife act of and distinct another jurisdictions is general English-speaking
“The all rule in made an accusation on the to be tried accused is entitled crime, or the collateral pleading on some State’s and not for being axio- is now deemed generally. The rule criminal State, Young matic jurisdictions.” v. and is followed in all Tex. Cr. Rep. 164, 2d 836. 261 S.W. the There mind but question writer’s no in the
prosecutor question set propounded the time he knew at the forth it and that just receive above he would what answer jury reaching would constitute evidence to be utilized tne killing his in the habit of conclusion was wives. pointed out,
For judgement the error is reversed the cause is remanded.
WOODLEY, Judge (dissenting). testimony majority quoted
The of opinion solely part remained a of in this case the evidence agree because withdrawn. declined to only objection testimony im- to the was that it was place material and “had no in this That was case.” jury testimony not made until after the which had heard the obviously conclude was hurtful and not admissible purpose. A search of the record fails to reveal that the trial court’s attention was directed to the claim that the prejudicial; hurtful, White was injected or was into the record purpose obtaining with the in mind of the benefits it and then withdrawing complaint it. The sole was that jury had heard was not material.
Having having agree reserved this declined to that the withdrawn, appellant nothing evidence be did further regard in to the jury matter until after the had returned its verdict. complaint
The sole regard in the motion for trial in new to the majority opinion set out in the was that the court permitting erred in the state to introduce it “over the objection of the defendant to the effect that such statements were immaterial to the issues in this case.” by
The contention sustained the is advanced for the first appeal. time on Appellant Ranger made the statement to the about Elgin rumor explanation in in of his keep promise failure to fully cooperate
to investigating with the officers and to come Department to the Safety of purpose. Public in Austin for that slightest suggestion There ing is the that the state was contend- appellant killed his first wife. White had suggested fully cooperate that his failure to checking the surrounding facts the death of the deceased would indicate to investigating the guilty. officers that he was light error is the of this the claimed appraised. should be general recognized by appellant rules of law which are require timely objection; specific
in his brief a more proffered testimony immaterial; require than that the is of the defendant seek to himself of the effect relieve by jury requesting that evidence that has been heard the it jury disregard it. withdrawn and the instructed to agree cannot the of statement comply White is such as to excuse of the failure with these rules. addition, In clearly rule in this case the Wall comes within State,
v. 156 Tex. which Cr. R. 2d S.W. it was necessary than to that he move for mistrial rather speculate upon a favorable verdict. Wall appealed assessing punish- from the extreme a verdict ment for complained murder. his cross-examination He that on questioned concerning prior terms term or three times served in penitentiary. objections the sustained and His were questions answered, were said no more. and he On rehearing, disposing complaint to the as Wall’s disposition fundamentally exception, this bill of we found defective and said:
“For upon complain, it was incumbent to here him to jury ask not to consider court to instruct questions. This he failed to do.
“It thought was upon appellant, further if he incumbent the asking questions of the was such a serious error that an disregard ineffective, instruction to would be to then move the court to declare a mistrial. This he also failed to do.” Unless overruled, Wall case is to be ground setting jury’s is not aside the verdict.
I respectfully dissent.
ON STATE’S MOTION FOR REHEARING WOODLEY, Judge, (dissenting). Rehearing overrule the State’s motion opinion.
without written Assuming appellant the statement of constituted evi- offense, dence proof of an extraneous such is admissible in a disprove circumstantial evidence case to accident the defense of trial, where the intent becomes an issue as where it is question mistake, claimed that the act was the result of accident or inadvertance.
Had evidence been available had murdered wife, his former the rule stated would render it admissible at his trial for wife, relying the murder of his the state second upon circumstantial raising evidence and his defense of accident. my purpose is not ground to dissent on the
statement of mitted, White should have been ad- that, but to demonstrate as contended counsel for state, ground there was reasonable to believe that it was admissible; faith; it was not offered in bad and was not “obviously so hurtful and inadmissible for purpose” that required to make timely; or specific ground to state for his or to seek relieve himself of the effect of the statement.
Ex Parte Robert G. Barstow 31,504. February
No.
Appellant represented himself.