*1 appeal. attorney record on No Attorney, Austin, George state. Blackburn, P. for the State’s DAVIDSON, Judge. charged complaint by information
unlawfully carrying person. He enter- a on and about his displaying pistol, plea guilty rudely a under such tained information, a guilty court found thereof punishment assessed fine of at a $25. displaying “rudely pistol,”
There is no known a offense may disturbing-the-peace but such a constitute violation of the (Art. 474, statute C.) in manner cal- Vernon’s P. when done culated to peace. disturb the
Disturbing peace degree offense lesser that of unlawfully carrying pistol. held in Williams We so Tex. Cr. R. and in 194 S. W. 2d Bell v. 26,342, (Page No. volume). judgment cause the trial court is reversed and the remanded.
Opinion approved by the court.
Rebecca Doswell v. State. 26,069. November 1952. Rehearing February 4, Denied 1953. Appellant’s Rehearing Second Motion for Denied (Without April 15, Opinion) Written *2 Mallory Dallas, Br'aecklein, Maury Hughes and William O. Moody, Austin, appellant. Blair and Dan for Bailey, Henry Wade, Attorney, First Assistant District Gene Attorney, Dal- Attorney, Potts, District District S.C. Assistant Austin, las, Attorney, for the George Blackburn, and P. State’s state.
MORRISON, Judge. murder; punishment, life.
The offense is 1244-page attempt statement shall to summarize the We facts herein. just up their resi- driven and her husband had Appellant’s hus- trip dential hotel in from to Colorado. Dallas alighted he met fire of a as
band his death automobile, appellant remained alone. Wit- from their wherein fired from the were nesses for pistol. state testified that two shots only they appellant heard for the stated Witnesses deceased, body explosion. Only entered the one one bullet found, killing Only immediately. him almost one bullet fell; at the scene that was a witness where the deceased but through pass testified that he heard what he was bullet investigating twig. nearby clip officers a three off time after did not until some know of this witness’s homicide, found. and the never bullet was automobile The witness testified as Simmonds appellant were talk- up and the hotel the deceased drove to the deceased ing; stop to a the automobile came before motion; alighted and that as while it was still therefrom They fired, deceased fell. he did so two were shots deceased addressed the stated that as the fell he shooting “you bitch.” Mrs. Simmons testified clothing appellant got adjusted her car, out of the her hair, began into and then started after which she to scream hotel, go body deceased and that she did not near the after he was shot. arrest,
After to her the homicide presented herself at the office the chief of the killing city police gave bureau of version her of how command, had that, occurred. stated at her husband’s She glove compartment reached of their automobile into *3 purse purpose transferring that pistol to her something therein, wrench, caught trigger a wire or a compart- pistol firing glove caused the to start from within the ment, many did had that she not know how times it shot. police The had recovered been fired twice. Wyatt girl
Florence testified a she had met the de- that as again ceased, years later, paths and that some their working Duggan, crossed while a Mr. and that she for during secretary part-time the summer of 1949 she a became Wyatt that, following period for the deceased. Miss testified time, Michigan, Detroit, re- she worked in from she whence approximately turned to Texas month a before the began immediately According to to work the deceased. Wyatt, shortly days Miss after her return some 18 before homicide, appellant his came to the office in deceased’s private her, during absence and had a with interview the course appellant why Dallas, asked wanted had returned she to long to know if deceased had ever talked to her over distance Detroit, while that, she was in and notified the even witness though competent, presence she considered her her office in the displeasing appellant, telling to at time the wit- the same generally jealous ness that she was to considered be a wife. Wyatt resigned employ- Miss testified she from deceased, appellant, ment with the because she was afraid of the who had pellant deceased, ap- kill threatened to her and and notified resignation during
of such course of that interview. following She further stated that this interview she went to Colorado. gave lengthy of her life appellant
At the trial a account relationship how de- with the deceased. She told and her misrepresented had financial worth to her to ceased his being marriage backing, how, their with financial she her marriage, wealthy deceased their woman at the time of had been in the oil successful business. denying to remember
She further testified did not she grand watch private to that she had hired detectives her husband. bought pistol on instruc- also that she had She testified glove into the
tions her husband and that as she reached get gun “something compartment happened and it ex- causing ploded,” her husband’s death. Harper, employee Detective Burns witness
Agency, testified, appellant rebuttal, came to his agency days employed office nine before the homicide and his C., place Washington, deceased, D. at who the time was seeing under Flor- in order determine if surveillance he was Washington and, Wyatt, ence whom to be not, girl determine seeing; what at this time the he was Harper told the witness not want divorce. she did reported day stated that on the he woman, spent evening the deceased had in fact identity known, whose taken home was not woman such evening, at the spent conclusion time and had some at her hotel.
Harper appel- following testified week the lant called place him de- and alerted him to Amarillo ceased under surveillance if and deter- he returned Dallas Wyatt. mine whether or not he met Florence The witness stated called him twice authorities; determine if he had disclosed he knew to the what attorney when Burns she learned that district had the report, tell her she asked the if he witness she should lawyers about it. grand appel-
The foreman that when of testified having appeared grand jury lant before the she em- denied ployed Agency Detective watch her husband some Burns short while to his death. support find conviction.
We the evidence sufficient
451 argument Assistant Exception complains 1 Bill Attorney MacNicoll, appellant contends consti- District issue. of fact on a material statements tuted unsworn objection certifying that no qualified court the bill knew the time the court was made thereto and that the first argument pre- said was when was dissatisfied with motion for new trial. sented 86, 269, State, 2d v. Tex. R. 207 S. In Gamble Cr. W. we said: argument on the
“If the and if it was not based made case, objection presented to in the should have been argument made, proper instruc- the court at the time withdrawing requested jury. too late tion from the It came it in the motion for new trial.” State,
In Brown v. 2d Tex. R. 51 S. Cr. W. we said:
“Appellant holding insists that we were error in arguments charges special shown in his were not erroneous prejudicial. objections and attorney No district to the remarks of the brought exception.
are forward in This the bills of ordinarily court objection proposition has committed itself argument to the must be made at the time it occurred attorney argument making may, order that if he fit, explain sees applied withdraw or it. rule This has been penalty cases in which the death been has assessed. Riles v. (Tex. rule, App.), State Supporting Cr. 38 S. 2dW. 548; see Sears 106 Tex. Cr. R. 291 S. W. (Tex. App.), Ross v. 1078; State Cr. 544, S. W. 2d Harris v. 93 Tex. Cr. R. 249 S. 485.” W. qualified, As so the bill fails to reflect reversible error. Exception Bill of complains argument No. 2 Attorney Assistant Bailey District follows: (the “You don’t know her defendant’s) theory it; she enough you didn’t it; have nerve to tell about you she didn’t want you it; to tell about truth", she had told would you, have told my husband; T despised him; murdered I he was *5 ” going get a divorce from me.’ bill argument fails to show that such reply was in not 452 invited argument provoked nor or of counsel State, fatally 154 Tex.
thereby. defective. Baker v. a is Such bill Baggett State, 116, (2d) 828, 154 Tex. Cr. Cr. R. 225 v. S. W. Digest, Crim. 618, 801, 2d in R. 229 S. and cases cited Texas W. (8) Law 1091 e. argument exception Dis- of the Bill of No. relates following: Attorney Wade, by the
trict reflected happen; Gentlemen, would “Mr. could Wade: you leave happen would if an accident. of never this was Which go and, then, your your baby, anyone never wife or or else said, confession, say living she one to them. to her own word As something injured knew, was he or and about to die she him, wrong him; go (10) feet of didn’t within ten she says him, says, woman who this woman who she loved this with, wicked he that she is still love this that murderess, was the one this woman— Honor, please second, your “Mr. Monroe: Just a —‘wicked just minute—
murderess’ —that’s name — you minute; connect “The I unless Court: Just sustain it it with the evidence. upon
“Mr. the facts. MacNicoll: That’s based say, upon “Mr. facts I the evidence and the Wade: based give case, him a drink this is a murderess but did she even of water?”
In Marshall v. 104 Tex. 286 S. W. Cr. R. attorney argument the state’s in his referred to There, “Nothing “a in this cold blooded murderer.” we said: exception any us failed facts bill wise informs justify a cold blooded conclusion that argument case, murderer.” In that we did observed that such not constitute new evidence.
In Jackson 118 Tex. R. 2d Cr. S. W. holdings we occasion to court review several concerning argument nature. of this We do not And reversible error bill. reflected Exception trial complains Bill of of the failure charge give a court do not on circumstantial evidence. We giving charge. required think the facts this case such a Exception Bill Captain 5No. recites that Hickman was *6 hypothetical questions by expert prove as firearms called Doswell type deceased Tom pistol killed the that that the accidentally, particularly and fired twice could have been shot gun already the first cocked when prove that was the the muscles fired, a reaction of explosion could cause was causing through excitement, be fired. second shot to great pages bill, after had been Some later in the there court, find we deal between and the discussion counsel jury questions and answers: heard “Q. right. your experience, Captain, observa- All Now from your tion, your guns study people from handled and who have knowledge you history personal have and information that obtained, accident, possible quite or in reference is it accidentally? gun discharged (indicating) A. can be Yes, sir.
“Q. knowledge Basing experience, history it on the same history again, study and information other first hand or —other firearms, any pertaining other reason to the use possible gun kind, it (indicating) whether it for a of that uncocked, rapid is cocked at the succession time or shot in to be your pulling, accidentally? Yes, from the use of A. I little would think so.” this,
From feel practically we received testimony sought same on issue to be raised ultimate complains appellant which the passing bill was denied. Without upon question testify qualified of whether the witness expert observe, on muscular we reaction further in con- bill, appellant, any nection with this that neither the nor witness her, finger trigger testified that was on the pistol fired, at time the same was nor that same was cocked. testify experienced Neither did the that she any muscular pistol reaction at the time the was fired. She merely glove compartment testified that she reached into the and that she did not know what made fire only it fired once.
Appellant expert testimony every entitled to defen- sive issue raised expert the evidence to which might applicable, be expert but she was not entitled to testi- mony upon a jury. defense not before the
Finding error, judgment no reversible of the trial court is affirmed.
ON FOR REHEARING. MOTION Judge. BELCHER, arguments again presents as error urges attorneys instances,
prosecuting several arguments collectively.. upon contentions These error based *7 seriously pointedly in an were are set forth able brief rehearing. argument presented on oral exception relating bill thereto We have re-examined each of light requirements thereof the of the in our decisions as to and fail to find reversible error. appellant strenuously
The that is one of insists case evidence, court erred in not circumstantial responding and that the trial charge appellant’s exception to its failure to so jury. the reviewing appellant facts,
In the find statement of we that testimony case. Her that testified on the trial of her reveals present homicide; pistol at the she was the time of the that right with which the act of was committed inwas her discharged. that hand time it discloses at the was The evidence discharge pistol the infliction the fatal wound of the of deceased stated that she and the were simultaneous. only touching persons car at the time the were the in or of accidentally shooting, pistol said that was she further discharged at shot. the time deceased was dispute proceeded throughout deceased
The trial that without pistol died of the wound. question adequately of
The court submitted to the discharge find pistol and we at the time accidental objection giving record The no in the record. of same that not defense was made deceased does reflect discharged pistol hand. it in shot when was discharge participation in The by persons on pistol admission who testified is shown her testimony. the trial and her own handling dis- at time its shows that she was charge possession. immediately it within her
455 157, 545, State, 272 S.W. v. 100 Tex. Cr. R. In McClure Morrow, P.J., (7), as follows: stated “* * * that, direct there be The law is well established by fired fatal shot was evidence a murder case required, accused, charge evidence is not on circumstantial though firing controverted issue his intent the shot be a surrounding facts.” solved be inference Further, proved by and. when a homicide evidence direct accompanied all that be found is the intent which remains to act, may sur- be from the determined circumstances rounding act, charge then a circumstantial evidence is necessary. Wesley 650, 149 Tex. R. 198 W. Cr. S. (4-5) ; C., 2d Branch’s Ann. Tex. P. Sec. cited; cases there Martinez v. 140 Tex. R. Cr. 2d
S.W. applies think We the rule stated where the issue is voluntarily whether pistol, the accused fired the as well as doing her intent so.
There was direct evidence in the record to com- show the mission of the appellant, charge therefore circumstantial required. evidence Remaining properly disposed convinced that we originally, appellant’s cause rehearing motion for is overruled.
Opinion approved by the Court. Hayton
Richard Dix v. State. 26,377. April 15,