95 S.W.2d 122 | Tex. Crim. App. | 1936
The offense is murder; the punishment, confinement in the penitentiary for five years.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Nellie Franks in some way and by some means, instruments and weapons to the grand jurors unknown.
Deceased was the wife of appellant. Her body was discovered in her home on the 13th of April, 1935, she having been last seen alive two or three days prior to said date. Horace Walker, a witness for the State, who lived in the home of deceased and appellant, testified that early in the morning of April 13, 1935, he saw appellant coming out of his room carrying the body of deceased. Appellant said to him: "Get back in bed. If you tell this I will kill you. If I don't get out of this I will see you are killed." He testified further that appellant carried deceased's body back into the kitchen and set fire to the house. When the fire was discovered other parties came to the house and carried the body into the yard. An autopsy disclosed that the skull had been fractured.
Testifying in his own behalf, appellant denied that he knew anything about the death of his wife until the fire was discovered. His testimony also raised the issue of alibi.
Appellant excepted to the charge of the court for its failure to instruct the jury that Horace Walker was an accomplice witness. The court submitted for the determination of the jury the question as to whether said witness was an accomplice. It is upon the testimony of said witness hereinafter quoted that appellant predicated his exception. We quote:
"I started out of my room into the hallway, opened the door going into the hallway, going into the bathroom after my old clothes. When I opened the door is when I saw Tom (appellant) with Nellie's body; I saw Tom coming out of his *579 room backwards with the body in his arms, with the two legs across his arm and the other under her, backing out of the room into the hallway. Tom Franks said something to me at the time I saw him; he says 'Get back in bed.' He says 'If you tell this I will kill you.' He says 'If I don't get out of this I will see you are killed.' "
Again we quote from the testimony of said witness:
"After Tom Franks left the house that Monday morning I never got out of that bed until this boy came and told me the house was on fire. I did tell the officers that, after Tom left the place, I got up and went out, but that was before I told the truth about it. This was Monday when I told the officers that, and it was Tuesday before I told the real facts. I didn't tell the officers that I got up and went out after I had seen the body. As to whether I did not tell Mr. Blair and Mr. Redding (deputy sheriffs) that, will say I didn't say anything about seeing the body. I told the officers I did not see Tom with the body but that was in the first statement before I told the truth about it. I didn't tell a lot of tales about it. I told it only once."
It is appellant's contention that the testimony above quoted placed the witness in the category of an accessory. In the cases cited by appellant in support of his contention it was shown that the witness affirmatively aided the person who had committed the offense to evade arrest or escape prosecution or punishment. In Littles v. State,
"The fact that the witness falsely denied having any knowledge of the crime will not of itself render such witness an accomplice." *580
The foregoing statement of the rule was approved by this court in the case of Tipton v. State,
Appellant excepted to the charge of the court for its failure to embrace an instruction covering the law of murder without malice. We think the issue was not raised. Prior to the repeal of the statutes defining murder in the first and second degree, this court held that an unexplained killing was murder in the second degree. Hamby v. State,
A careful examination of the record leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.