249 S.W. 844 | Tex. Crim. App. | 1923
The indictment charges by proper averments that Charlie Kingston murdered Sam Griffin, and that appellant had prior thereto advised, commanded and encouraged said Kingston to commit said offense, but was not present at the time of the killing Upon conviction appellant's punishment was assessed at five years in the penitentiary.
We do not regard it necessary to set out the evidence in detail. Sam Griffin's wife was appellant's daughter. Kingston was a widower. Enmity of a serious character existed between the two men. They were carrying guns for each other, and so notorious was the trouble it was generally expected a killing would result whenever a meeting took place. This condition of affairs arose over the alleged improper relations between Kingston and Griffin's wife; Griffin was apparently seeking to kill Kingston because of such relations, and Kingston to kill Griffin, so that he might marry Mrs. Griffin. The parties all lived in the same community, and so generally known was the feud that neighbors intervened to try and prevent the killing which had become imminent. In response to this appeal Griffin agreed to lay his gun aside and abandon the man hunt. Kings ton, however, was not of the same mind. When approached by the parties who had gotten the assurance from Griffin, Kingston in effect replied that he did not want them to come to him with any more "peace proposals," and that he intended to kill Griffin if he "went to hell" for it. It was the theory of the State that appellant joined Kingston and Mrs. Griffin in their desire to get Griffin out of the way, and that a conspiracy was formed among the three looking to his removal. It was in evidence that on one occasion they "shook *125 hands" upon the proposition that they would stand together until Griffin was out of the way. It was also proven that a few months before the killing Griffin and his family stayed for a time with his brother-in-law, Minnis Bird; that appellant had told a witness she advised Kingston how he could secret himself at a point near there and kill Griffin as he left Bird's house. There is also evidence in the record tending to show that appellant placed a lamp in a certain position in the window to advise Kingston as to the movements of deceased. When Griffin was killed he was shot in the back. The facts were such the jury would have been warranted in finding that Kingston had waylaid and assisnated him. A few months after the killing Kingston and Mrs. Griffin were married.
There is no criticism of the court's charge. It appears to be a fair presentation of the law. No special charges were requested. There are only three bills of exception in the record, and they complain of the admission of certain evidence. It was proven by the state that after the killing both Kingston and Mrs. Griffin expressed their purpose to marry. It was shown that appellant was present and heard this conversation. It was an expressed intention on their part to carry out the plan rendered possible by the killing of deceased. Appellant being present when such conversation was had, we are not aware of any rule of law rendering it inadmissible.
The state had proven that one night Mrs. Griffin and Kingston met behind an outhouse, at which time Kingston lost a belt which when found was sent to appellant who returned it to Kingston. A witness testified over objection that she heard Mrs. Griffin say she met Kingston at said place. This statement was made by one of the alleged conspirators during the pendency of the conspiracy. (Branch's Ann. P.C., Sec. 694, p. 352.) There appears to have been no controversy about the meeting having taken place. A statement from Kingston was introduced to the effect that while he and Mrs. Griffin were at the place in question deceased approached, and that he (Kingston) jerked his belt loose when he pulled his pistol intending to kill deceased then if he came nearer. Mrs. Griffin's statement was admissible. (See authorities collated under foregoing Section of Branch). We note also that other testimony establishing the fact of such meeting was in evidence, and under such circumstances the admission of the hearsay statement of Mrs. Griffin would not present reversible error, if not admissible on the other ground stated. Bill of exception number two recites that:
"— while the witness for the State, Ella May Kingston, was testifying, on behalf of the State, the District Attorney was permitted to prove, over the objection of the defendant, by said witness that she told the defendant that she had heard that the defendant had put a light out to give Kingston warning as to when the deceased left the house, and that while witness and defendant were going down *126 the road near the place where Sam Griffin had killed Jim Kingston, witness asked defendant if it was true that she put the light there, whereupon defendant replied that she did, etc.
"Said testimony was objected to because same was immaterial, and further because it was another and different transaction (the killing of Jim Kingston having occurred several months prior to the date of the commission of the offense for which the defendant is now on trial."
A bill of exceptions should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error. (Branch's Ann. P.C., Sec. 206, page 131, and authorities cited thereunder.) The bill before us does not measure up to the requirement. Ella May Kingston was a daughter of Charley Kingston, the alleged principal in the instant homicide. We learn from the statement of facts that several months before Sam Griffin was killed by Charley Kingston, that Griffin had killed Jim Kingston. Appellant argues in his brief that the matter set out in the bill about putting "out the light" was with reference to warning Jim, and not Charley Kingston as to the movements of deceased, and had reference to the killing committed by Griffin, and not the one in which he was killed. The bill is approved with the following qualification:
"It was the theory of the State that a conspiracy existed between Charlie Kingston, Mrs. Leta Griffin (now Kingston) and the defendant to take the life of Sam Griffin, and this testimony was admitted on said theory, limited however by the charge of the Court on conspiracy."
Unless a bill of exception shows otherwise we are bound by the legal presumption that the ruling of the trial court was correct, and such presumption must control in this instance.
The jury were warranted from the evidence in reaching the conclusion they did, notwithstanding appellant's denial of the truth of the criminative circumstances against her. The issues of fact having been settled in favor of the State by the jury, and finding no errors in the record calling for a reversal, the judgment must be affirmed.
Affirmed.
