ALLEN LEE MOORE v. STATE
No. 24813
June 14, 1950
Rehearing Denied October 11, 1950
Such testimony, together with the other facts and circumstances, this being a circumstantial evidence case, are sufficient to show that the life of thе fetus was destroyed in connection with the abortion, and to sustain the jury verdict under the court‘s charge.
Appellant‘s motion for rehearing is overruled.
Opinion approved by the court.
George P. Blackburn, State‘s Attorney, Austin, for the state.
WOODLEY, Judge.
Appellant was convicted in the district court of Titus County, Texas, for the offense of murder under the provisions of
The аccident occurred on U. S. Highway 67 in Franklin County and prosecution was had in Titus County where the injured party, Johnnie Kathryn Sellers, died.
The count of the indictment upon which the case was submitted to the jury reads as follows:
“And the Grand Jurors aforesaid: Upon their oaths aforesaid do further present in and to said court that heretofore on or about the 3rd day of September, 1949, and anterior to the presentment of this indictment, in the County of Titus and State of Texas, Allen Lee Moore, did then and there unlawfully drive and operate a motor vehicle, to-wit, an automobile upon a public highway in Franklin County, Texas, to-wit, United States Highway Number 67, while then and there intoxicated and under the influence of intoxicating liquor, and while so driving and oрerating said automobile, did through accident and mistake kill and murder Johnnie Kathryn Sellers by driving said automobile into and against thе automobile occupied by the said Johnnie Kathryn Sellers, thereby and therewith causing her death, the said Johnnie Kathryn Sеllers dying in Titus County, Texas.”
Appellant, by motion to quash and by exceptions to the court‘s charge, complained that thе allegations of the indictment are contradictory, confusing and uncertain. He insists that the indictment alleges that appellant in the county of Titus and State of Texas operated an automobile upon a public highway in Franklin County—thus creating an impossible situ
It seems clear from the indictment as a whole that in Titus County, appellant was being charged with murder beсause of injuries accidentally inflicted by him upon Johnnie Kathryn Sellers in Franklin County while driving on the named highway in an intoxicated condition, and venue was shown by the allegation that death occurred in Titus County. See
Appellant next complains of the overruling of his motion for new trial because of “certain new witnesses” who he says would testify that appellant was not intoxicated and who would corroborate appellant‘s testimony as to cattle being in the road at thе time of the accident.
It is shown that other witnesses, who gave similar testimony in behalf of appellant, were impeached by proof of prior contradictory statements. Appellant, for such reason, contended that he should be granted a new trial in order that he might have the benefit of the testimony of the witnesses Mrs. Joyce Larkin Cook, Paul Bryant, Wаllace Hunnicutt and Mrs. Fay Hunnicutt.
Mrs. Cook was subpoenaed as a witness and was available, but was excused by appеllant‘s counsel after she had informed them that she thought she detected the odor of whisky on appellant‘s breath. She testified on the hearing of the motion for new trial, and expressed the opinion that appellant on the night of thе accident, when brought to the hospital, was not intoxicated.
A subpoena was issued for Paul Bryant, who was temporаrily out of the state at the time of the trial. Appellant knew of his absence and made no request for postpоnement or continuance because thereof.
Wallace Hunnicutt testified on the hearing that he was relatеd to appellant by marriage; that he went immediately to the hospital on learning of the accident, and spent much time with him on that night and on the following day. He also testified that he went on a trip with appellant one night and talked with him; that he had been at home continuously since the accident.
It is clear that the above testimony does not come within the rule regarding newly discovered evidence as a basis for new trial. It is the duty of аn accused and his counsel to prepare for trial and in the event of the absence of a material witness to request a postponement in order to secure testimony considered to be necessary.
Having elected to proceed in the absence of the witness Bryant and the other witnesses being present and available, аppellant was not entitled to have an unfavorable verdict set aside and a new trial ordered.
The trial cоurt properly declined to permit examination of the jurors as to alleged misconduct in the jury room. The affidavit оf appellant to the claimed acts was necessarily hearsay and insufficient to require such examination. Sеe Henderson v. State, 154 Tex. Cr. R. 376, 227 S.W. 2d 821; Fielden v. State, 152 Tex. Cr. R. 597, 216 S.W. 2d 198; Toms v. State, 150 Tex. Cr. R. 264, 200 S.W. 2d 174.
We are not in position to say that the evidence is not sufficient to sustain the jury‘s verdict, and we find no error requiring reversal.
The judgment is therefore affirmed.
Opinion approved by the court.
ON MOTION FOR REHEARING.
GRAVES, Judge.
Appellant again complains because of an alleged contradiction in the indictment herein wherеin it is alleged that he committed the offense in Titus County by striking the deceased young lady in Franklin County, she dying therefrom in Titus County.
The indictment сould have alleged that such offense was committed in either county, provided the victim died in Titus
We see no incongruity in the allegations; the offense was committed originally in one county and finally consummated in the death in Titus County where the venue was properly laid.
The motion is overruled.