*1 573 given opportunity cor- plication, an the trial court has been and, any entry judgment, rect clerical error in the showing contrary, absence must assume that we judgment punishment correctly assessed before us reflects the by the court. judgment punish- neither definite nor certain as to the assessed, parte East,
ment and for such reason is Ex 154 void. 123, Rep. 833, parte Traxler, Texas Cr. 147 225 2d Ex S.W. 661, State, Rep. 286, Texas Cr. 2d and Edwards v. S.W. Rep. 301, 153 Texas Cr. 2d S.W. 1022.
It is ordered that relator be relieved from further confine- ment in penitentiary peni- and that he be delivered tentiary Gregg County authorities to the sheriff of answer in the 124th county District of such Court to the indictment said cause under which his conviction was had.
It so ordered.
Wilburn Monroe Hall v. State 26,688. No. 1957. January Rehearing Appellant’s Motion for March Overruled, 27, 1957. Rehearing Appellant’s Second Motion for Overruled (Without Opinion) Written May 1, 1957. *2 Houston, appellant. Wolters, for
Russell F. Eugene Brady Thomas Walton, Attorney, Dan District Houston, Leon Attorney, White, D. Douglas, Assistants District Austin, Attorney, the state. for State’s BELCHER, Judge. murder; punishment, death.
The conviction deceased, Ross Mac- The shows that Samuel separated on Gregor wife, MacGregor, Joy his were separation deceased 17, Shortly thé their December spent 1954. after Austin, then in a mental institution seven months Houston September his returned to after release on step-father, Mr. and in the where he lived home of mother Clayton Clayton. operated a which was Mrs. cafe Mrs. W. C. Lee, Hous- Joy lived in next door to her residence. who located ton, P.M., April 1, visited went the cafe 4:45 about (the deceased) ar- Clayton, and when her husband with Mrs. rived, outside, left. talked a short time and went with him asleep, P.M., retired and after the deceased had' was About investigation by discharge an was heard and Claytons shot showed that the deceased had been officers through while he residence a window from lay outside of the window, top asleep and the in bed having been off as result of his his head had been blown. gauge shotgun. by a .12 shot fond of appellant had become proof shows that keeping company Lee, wife,
Joy the deceased’s months, had told him and that she with her for four about mistreated the deceased. she had been abused and Irby Hutchinson, being locate unable to Sheriffs appellant Joy immediately was after the deceased shot, appeared apartment near her until a car watched for them occupants They approached 6 A.M. found the about the car and Among appellant’s to be the Lee. first words spoken anything about the officers were “that didn’t know it, want,” you I am the one and he later asked “if them Sam gauge was dead.” A search four .12 revealed shotgun pocket. They shells in his left asked where replied was that he used and in the *3 they car them. under the front seat which found as he had told gun Appellant was loaded. told the that he had officers empty away. They thrown the shell found also nineteen .12 gauge glove compartment shells in the of the car. appellant’s voluntary
The state introduced written statement made to concerning shooting Sheriff John Fox S. the MacGregor Samuel Ross and it was in admitted evidence without objection. part “My It reads in as follows: Mon- name Wilburn ** * years December, roe I am 1955,1 old . Sometime * * * Joy MacGregor met . I married knew she was MacGregor (had) Sam and three children had him but ** * separated April been from Yesterday, him for some time. 1, 1956, Joy, her children I and went to Huf a Smith in Ford Washington which I had stolen off of a lot on on Ave. stopped March 1955. We at a cafe in Huf Smith the got children and car, I out Joy of the Lee went on down to place. Sam’s Mother’s She went there to see Sam as he had told her on phone ago the a a about week and half to come and see * ** straightening gun him property. got about their I the going shells with the killing intention of to Huf Smith and Sam. I parked just drove to Huf Smith and the up car street the from place. put Sam’s a my pocket Mother’s I few of the shells in taking gun along I down walked the road and the south side of place Sam’s Mother’s and climbed over a fence barb wire and walked joint around back of the beer and then back of the house. The gate house was dark so I came out the side between the house and joint way the beer into a drive and looked * * * joint window if beer to see Sam was there. I Then went to the of the window back room of the house and saw Sam lying on his side on the bed with his back to me. While I was go
looking the back man come from at I saw the old Sam at I stood part the house. to the front thru room Sam’s gone room from the man a after the old window little bit gun the back Sam’s it at I raised the and aimed and then gun about I of the barrel head and fired. had the end I as I fired fired. As soon when I foot or two from window got place in the car way I had come went back town. After I headed for Houston and come which had my empty shell in put the I reloaded the I shot Sam where. I went pocket, away know later. I don’t I threw was still and saw Lee who on Jensen Drive Grove at her house. an hour me to meet her in about Jack. She told A.M. when was 12:15 don’t know what time I shot but it I Sam and we picked Joy up I 1:30 A.M. about I Grove. stopped parked came back and around for a while. rode came to away two houses from Lee’s and officers about A.M. placed arrest this was about 6:00 the car us under 2nd, morning, April and the 1956. I still had the this * *”* in the car at that time. of the shells balance Dwyer state who testified In rebuttal called Dr. W.C. psychiatrist County ten that he had years; for Harris opinion that he had and in his examined right and he was of sound mind and knew the difference between wrong. testifying behalf,
Appellant, in his the wit- own stated *4 truthfully, nesses for the state had testified that he had not mistreated, and admitted that he made the written state- been introduced in ment Sheriff Fox which had evi- dence, stated that he was not under said but oath when he made knew guilty He further testified that he not statement. but strangers making killing how the occurred because he heard two deceased; plans to kill the and that he confessed to the crime signed past the statement he had a record and knew because investigate Joy the officers would that connection with big try death and “to make a fool out her.” He ad- deceased’s of he mitted his affection for Lee and that like would to have wife; as her and that he had heard that wife could not patient. divorce a he was a husband while mental Cooper, by appellant, J. called that didn’t W. testified right appellant wrong when he know whether knew from that then last saw him on March but he was of un- dope. influence of sound mind or under the ap- brother, that Appellant’s testified Woodrow right wrong pellant of a from that had the mind knew but year boy. sixteen old MacGregor, deceased, by the of called widow
appellant, keeping company with admitted that she had been making appellant; that love to the that she had told him they had had a deceased shot at her three times and fight; “shot told her A.M. that he about 1:00 Sam,” night that she later remained saw him that him until 6 A.M. support jury’s sufficient to verdict. charge charges requested exceptions
There were no or jury. submitted to the exception appear
No formal bills of in- in the record. Six presented. formal bills are
Appellant complains a state’s on direct use witness Sunday” examination of the re- words “Easter the court which fused to delete. argument urges
In his oral and brief that because religious concerning Sunday, certain convictions Easter which is charged, the date of the offense here injured could any juror possessed have been if such convictions. complained The record discloses the use of the words during numerous times the examination witnesses without objection. support appellant’s The record fails claim that Sunday day reference to Easter as offense on which the prejudicial was committed was defense. In absence showing such a we would not con- be authorized reverse this viction.
Appellant complains of the admission in evidence of testi- mony that “there was brains about four inches in diameter right over the left side of the dresser” and on the wall *5 ground that was not material.
Ordinarily, physical the facts circumstances surround- ing tending a are in homicide admissible evidence as to throw light on the transaction and to reveal its nature. In Hanie v. State, Rep. 151 Texas Cr. 2d the S.W. where testimony the as to complained the admission place, took we where homicide of the houseboat
condition said:
* “* * “blood this It is contended that evidence about Probably Most evi- inflammatory prejudicial. so. brains” prejudicial, inflammatory describing a murder dence general to the circumstances as a rule is admissible show but en- purpose killing, useful in frequently serves a nothing penalty. in abling appropriate find jury fix to We the rules.” testimony its admission under preventing this he was testified that After the state’s witness Knowles had shotguns shotgun ex- he asked to shells familiar with and then introduced in evidence asked: amine the shells go hunting you squirrel a or that such shell would use bird “Is hardly.” hunting?” To which and the witness answered: “Not hunting “Object testimony about bird stated: hunting,” not matter was squirrel which was overruled. The or prior objection the Immediately to. to the thereafter referred mag- the shells in contained had testified that evidence witness longer quarter than the shot, a of an inch num No. and were shell, shell, power normal more than the standard “has higher gives velocity penetrating it a and more and hit- which ting power.” injury by such perceive no reason of
testimony especially in of his confession introduced in view and shells with the intention of killing the deceased. testimony
Appellant objected concern- of John Fox S. ing a window screen because the witness had testified he ex- testimony one other amined the south side whereas shows screen that the came from west side. previously
The screen had been introduced evidence and witness had identified it. that when He testified went on the outside of the house to this window he could see the body stooping of the deceased on the bed and a hole little the in the screen was line with the head. deceased’s When regard testimony is considered as whole window screen, no error is revealed. Appellant requiring insists the court erred in *6 testify objection brother, that over Woodrow introduced in evidence. owned the testifying, out Appellant, stated that while house, introduced in of his and his brother’s written statement single “got my .12 evidence recites that he brother’s barrel gauge shotgun perceive error. and a full box of shells.” We no
Finding judgment error, no reversible is affirmed.
Opinion approved by the Court.
ON APPELLANT’S MOTION FOE REHEARING DICE, Judge.
Appellant insists that record testimony because of that he sixteen-year-old boy” had the “mind of the evidence is fixing insufficient punishment to sustain the at verdict contrary death and the verdict the law and the evi- both dence. P.C., Art. provides person
While Vernon’s Ann. that “a for an age offense committed before he at seven- arrived of years teen punished shall case death,” no be such applicable statute present is not case as the evidence shows appellant.was twenty-eight years age at the time age trial years and over the of seventeen on the date the of- fense provisions was committed. Under the of the statute it is age may the accused that controls as to whether he be punished degree mentality. with death rather than the of his again light have examined the record in the other presented by appellant rehearing contentions his motion properly disposed remain convinced that we cause original submission. The motion overruled.
Opinion approved the Court.