167 S.W.2d 1035 | Tex. Crim. App. | 1942
Lead Opinion
Helen O’Keefe was convicted of the murder of J. C. Franklin and assessed a penalty of twenty-five years imprisonment in the State penitentiary by a jury in Harris County and she brings this appeal.
The indictment alleges that on about the 12th day of November, 1941, appellant killed J. C. Franklin by shooting him with a gun. Another count alleges that he was killed by means unknown to the grand jurors.
The State’s case and the constituent elements necessary to establish the offense charged are supported only by circumstantial evidence. Appellant is a young woman who had been employed by a loan company, of which Franklin was manager, for a period of eleven years. She is shown to have been a trusted employee of the company. In his absence she had charge of the business and assisted in its conduct even while he was present. There is no evidence of any disagreement between them at any time and no circumstance which would indicate that he was dissatisfied with her or that the relationship as employer and employee was any different from what it had been for several years past. The business was incorporated some twenty years ago and had a paid up capital stock of $90,000.00. At the time of the alleged tragedy the assets consisted solely of notes to the amount of $19,000.00, with a liability of $5,000.00 for borrowed money from the bank. Several audits of the business had been made in past years which seem to have been unsatisfactory to Franklin and no details of them are in the record. It appears that another audit was being considered which was not completed at the time of the trial and the voluminous record in the case gives few details of the business other than that above stated.
For some weeks prior to November 12, appellant had sought at different times to engage the services of certain characters to beat Franklin up, break his legs or do something that would put him in the hospital for several months. This evidence is given in the record in great detail, some of which is corroborated by
For several months prior to November 12, appellant had been keeping company with Louis Rabouin, an ex-soldier, who was about nineteen years of age. He had an automobile and she was with him or had his car very nearly every day. He testified as a witness in the case but does not seem to have assisted in her plan to have the injury inflicted on Franklin.
It is the theory of the State that appellant murdered Franklin under the circumstances given and that her motive in doing so was to hide a shortage which she had created in the business by forging checks on company funds and securing the money for herself. At least we find no other motive indicated by the State’s evidence or its brief. There is no evidence offered by the State, however, to show that she expected to come in charge of the business; that Franklin had ever complained to her about the forgeries; that he knew of what had taken place or that any record had been made which could not be discovered by other interested directors or stockholders as well as by Franklin. That the removal of Franklin from his business would help appellant hide her unlawful transactions with the company funds is not supported by the evidence.
A brief summary of the very lengthy statement of facts will include only that which is pertinent to the issues necessary to a discussion of the law involved. On November 11, appellant and her young friend, Rabouin, had spent the holiday together driving out into the country, at which time they found themselves on what appears to be an old boat landing on the San Jacinto River about eighteen miles from the heart of the city, a spot which appears to be semi-secluded. Occasional landings were made from the river and witness and appellant reached it by a worn out roadway which at one time was probably used by heavy traffic. At this point their car became stalled in the sand and they spent several hours extricating it. During the time, they practiced shooting with the pistol which she had purchased. Early the next morning, according to the statement made by her to his family, she met Franklin, at his suggestion,
On the question of identity, it may be admitted that the car belonged to Franklin and was the one used by him on that date. Among its ruins was found a portion of a human body insufficient to be identified as his except by the circumstances which surrounded it when a search of the ruins had been completed. A watch was found identified as his, keys and a keyholder with his name on it, a carpenter’s rule, a Catholic tag, two Catholic medals, spectacles, a pin, a buckle, a knife and cuff buttons, all identified as being his property. A piece of burned brown cloth was believed to be a part of his suit. A piece of a shoe was of the same style and fashion as a pair sold to him. One natural and seventeen false teeth were found, concerning which the testimony, much controverted, nevertheless indicates that they could have been the teeth of Franklin, though nine false teeth and one natural tooth were entirely missing. It can hardly be said in the state of the evidence that the dentist who made them positively identified them as the teeth of Franklin. They could have been his teeth. Of the human flesh found, there was a much burned small portion of a lung and a very small part of the flesh about the bones of the pelvis, including a protected portion of the lower bowels, a piece of a skull approximately
The defense takes the position that it was not the body of Franklin, that he is not dead and that the whole transaction was a frame-up to aid in the escape of Franklin and for the collection of an insurance policy made payable to his company in the amount of. $35,000.00 on his life, with $25,000.00 additional for accidental death. They produced a witness, R. C. Maxwell, who qualified to testify on the subject and he described the method by which human bodies are cremated, making the assertion that bones will not burn to destruction, that after being submitted to enormous heat they are then crushed and reduced to a powder form. The effect of this evidence was that an entire body was not burned in the car to the extent described and that it would have been impossible to apply heat to a body in an open space or in a car that would consume the amount of missing bone. The State had on the witness stand several doctors undoubtedly authorities on the subject, some connected with the medical college, yet no effort was made to refute this testimony other than to discount the witness. It is significant that the State was in position to refute the claim of the scientific fact relied upon by defendant, if it be not correct. Appellant insists that this evidence is conclusive and should be so respected, regardless of the jury’s finding to the contrary. We are unable to so view it.
In “Legal Medicine and Toxicology.” Second Edition, Volume II, page 876, we find a discussion referring to the history of numerous cases in courts of other jurisdictions which bear upon the admissibility of this evidence and the conclusive effect of it. In the famous trial of Professor Webster, 1850, it was shown that an effort to burn a body in open air did not succeed after working an entire night. The case of State v. Calder, 59 Pac. R. 903, gives a history of the burning of two bodies for ten hours on an open fire and describes the recovered pieces of bone as filling a ten gallon lard can. In the Roxalana Druse
Assuming that the State has discharged its burden of proving the identity of the remains as that of Franklin, it then becomes pertinent to consider the evidence establishing the fact that his death resulted from the act of another. All the circumstances of the case may be considered by the jury in determining this fact. He was in apparently good health for a man of his age. He left his home at the regular time and there was nothing unusual in his manner or in any statement made by him, indicating that he would do other than go to his office in the regular way. His car, the identifying objects heretofore enumerated and the remains of the body were found at a place not in the course of his usual habit of traveling. The disappearance of a party from the community is a circumstance sometimes of more significance than others, depending upon the surrounding conditions. It appears that his course for the day was diverted by some outside influence and the party last shown to have been in contact with him was appellant. There is nothing about the physical remains that would indicate the nature or extent of any wounds inflicted on him and nothing that would involve appellant to the exclusion of another or others. An examination of a portion of the lung by a physician indicates the probability of death by some other means before the burning of the body. Both sides are agreed and the evidence is conclusive that, in the event the body is proven to be that of Franklin, some other and more powerful heat was applied to the body than that which the burned portion of the car would furnish. The writer thinks it is equally as impressive that a stronger physical force would be required to handle the necessary fuel and to burn the body than the strength of the appellant alone
While it is sufficiently proven that the remains of the body found in the car had been subjected to a fire greater than that which the car had produced and that death preceded the burning yet the evidence is insufficient to show the manner in which life was lost. The question of appellant’s participation in whatever crime was proven in a manner sufficient to make her a principal under the law is one of equal importance to the State with that of any other question and is the weak place in its case. Circumstantial evidence sufficient to comply with the law is claimed by the prosecution in order to support the conviction. As is frequently the case, we find difficulty in distinguishing suspicious conduct from circumstantial evidence leading to a reasonable and logical conclusion and excluding the possibility of any other than that of her guilt.
Appellant, for no reason stated iri the record, remained away from the office, knowing that her superior would not be there and fully aware that the only employee was one given no responsibility in the business of the company. The reason for her absence is unexplained by any fact or circumstance other than her connection with the disappearance of Franklin. No reasonable mind could doubt that she is in possession of the true facts and would be able to tell the story of his death or disappearance. She did not testify. It would be inhuman if a juror failed to have a prejudice against her case because of these circumstances. The suspicion is great. If she were probably away from her work it could be explained, and the occasion was one calling for the explanation. She chose to withhold it, as is her legal right. Thus she has confused and augmented the suspicions against her, so as to make it difficult to distinguish the case from one which would support a conviction. The jury did not make the distinction.
Appellant met her friend, Rabouin, at the. appointed hour in the afternoon of November 12 and was with him, acting in a normal manner and the usual course of conduct, until a late hour, when she was informed while sitting in the car in front of her apartment that the officers were looking for her in connection with the death of Franklin. Apparently this was the first time she was advised the officers were investigating the matter. She was questioned by them for several hours, but not taken into custody. As she left her companion, she asked him to be in an-appointed place so she could communicate with him, which she did at a very late hour at night. They went in a car
Failing in the proof that Franklin died from gunshot wounds, the evidence regarding the pistol loses its potency.
On the face of the record made by the State showing that the party found in the automobile was dead before being burned, the presence and assistance of more than one person will be the logical conclusion. Certainly appellant could not have handled the dead body of a two hundred pound man and have succeeded in applying heat from any source to consume the body, with her own physical strength unaided by another. The evidence produced to show her presence fails to include anything to indicate any strenuous physical strain on her part, and we are unable to find that which may be relied upon by the State to support a verdict and the conclusion that Helen O’Keefe, personally, was present and took the life of J. C. Franklin by any manner known or unknown. On questions of the sufficiency of the evidence, the State relies upon the very exhaustive opinion of Judge Hurt in Kugadt v. State, 44 S. W. 989. The similarity of the two cases is readily recognized, yet they are quite different in the more material aspects. Kugadt lived with his sister in a rural community. Taking her luggage prepared for her return to Europe, they started to Brenham for the purpose of boarding a train. She had several hundred
The State will be required to offer some proof either by direct testimony or conclusive circumstances to show the presence of appellant at the time and place where the life of the deceased was taken, or that she was engaged at the very time in aiding in some way the perpetration of the crime. It will not be sufficient to show that she knew the life had been taken or even that she helped handle the body after the crime was committed. We find in the record no intimation whatsoever as to the time and place of the homicide. Certainly there is no evidence that she was acting with another in such manner that she could be held to be a principal. We think the- conclusion inescapable that this
The foregoing will be sufficient to dispose of the case as it is now before us. All bills of exception will be considered overruled unless they are specifically herein sustained.
During the trial of the case, the State placed on the witness stand a party brought from the penitentiary named Leo Giordenella, who was expected to testify that appellant had approached him to secure his services in inflicting an injury on the deceased. The witness did not give the testimony expected but made a statement directly contradicting the evidence offered by the State through another witness. The State then sought to impeach Giordenella both by cross examining him and by calling an officer to testify as to statements made by Giordenella to the officer along the lines indicated by the questions. The witness had told the district attorney that he would, when placed on the witness stand, tell the truth, and the prosecution had a right to expect him to tell the same thing he was reported to have told the investigating officer. His failure to do so was a surprise. Had this resulted in the mere failure to make proof of a fact which the State hoped to show by him, the impeaching testimony would not have been admissible — Branch’s A. P. C. Section 164, page 95, and authorities there cited — but where the statement made by the witness contradicts some fact proven and relied upon by the party placing him on the stand in addition to surprising the side which offered him, the rule is different. We quote from the above section of Branch, as follows: “The State may impeach her own witness by proof of contradictory statements where he testifies to either affirmative or negative facts injurious to the State’s case.” See authorities cited, and especially Baum v. State, 133 S. W. 271. A more recent opinion on the subject restating the correct rule is found in an opinion by Judge Lattimore in Hughes v. State, 272 S. W. 474. See also Williford v. State, 37 S. W. 761. The same reasoning will apply to appellant’s bill of exception number eleven and the conclusion may be reached that the exception cannot be sustained.
Several bills of exception which will be considered together complain of the action of the court in admitting in evidence certain checks drawn on the company, bearing the signature of appellant, together with the endorsement of the names of the payee on such checks on the back thereof which were shown to have been in the handwriting of appellant. This evidence
It is unnecessary to restate the exceptions to the rule forbidding proof of other crimes. We have only to consider the facts and circumstances of this case to determine whether or not, as a matter of fact, the killing of Franklin by appellant could have had any effect on the status of appellant with reference to the other proven crimes. If the forgeries had some relationship to the homicide, then the objection would go only to the weight of the evidence. If they had none, the objection goes to the admissibility. A conclusion on the question is of supreme importance to the prosecution and has given this court unusual concern. We confess our inability to understand from the record just how the appellant could expect to have received benefit by the death of Franklin, and it is indicated that she did not. Franklin had examined auditors’ reports which had been made of the company’s books and declined to accept them as being satisfactory. We have no way of concluding that such audits were unsatisfactory because they did not properly handle the forged items, contrary to the wishes of Franklin, as the State evidently reasoned. They were all made before the date of the forgeries. It appears that another audit was being considered, which probably would reveal the shortage, but the death of Franklin in this mysterious manner should be expected to hasten the audit rather than delay or prevent it. In the event that trouble should arise about the matter, we have no way, in view of the facts before us, of saying that she hoped to escape the consequences of her crime more satisfactorily with Franklin out of the way than with him present. It is hardly probable that this question has heretofore been presented in the same way as in the instant case, so that authorities decisive of it are not readily available. Polanco v. State 106 S. W. (2d) 1057 contains what may be relied upon as a helpful discussion in addition to those hereinabove referred to. See also Sections 1882-83, Branch’s A. P. C., pages 1046-47. All bills of exception com
For the reasons stated, the judgment of the trial court is reversed and the cause remanded.
Rehearing
ON MOTION FOR REHEARING.
The State, by and through its able District Attorney, has filed an exhaustive motion for rehearing and made a very ingenious argument in support of the contention that we erred, first, in holding the evidence insufficient to establish the appellant’s connection with the death of Franklin; and, second that the introduction in evidence of the forged checks was not admissible on the theory that they showed a motive for the commission of the alleged offense. These matters were fully discussed by us in the original opinion and we do not think that we could add anything which would more clearly express our views on the subject under consideration than what we have already said. However, in view of the ardent and enthusiastic presentation of the State’s contention, we will make a few pertinent observations.
The State’s case rests entirely upon circumstantial evidence. The law relative to the sufficiency of circumstantial evidence, to sustain a conviction, need not be re-stated here as it has been heretofore stated by this court in numerous cases. For a discussion of the same, we refer to the case of Clifton v. State, 39 Tex. Cr. R. 619. The rule there announced has been consistently adhered to by this court.
We do not believe that the facts and circumstances proved connect appellant with the death or murder of J. C. Franklin. How, where, by whom and by what means Franklin came to his death is not shown by the evidence. Much stress is laid in the argument on isolated circumstances. For instance, the State earnestly insists that there is evidence in the record showing that the shoes of the appellant, a day or two after the commission of the alleged offense, were muddy, and that the mud on these shoes was similar to that on the bank of the San Jacinto River, where the purported body of Franklin was discovered in his car. However, there is no evidence that the dirt was different from any soil in and about Houston, nor were any tracks of any lady found in and about the car. If the ground was muddy, a lady’s tracks would easily be visible. Much stress is also laid
We are not going to enter upon an extensive discussion of all the circumstances in this case as the matter has already been discussed at length in the original opinion. The prosecuting attorney and the officers are to be commended for the diligent efforts made in their endeavor to unravel the mystery which confronted them. That they failed to connect the accused with the murder of J. C. Franklin is not their fault.
Now, with reference to the admission in evidence of the forged checks, it was shown that the checks made payable to Abel, Anderson, Stowers, Burleson and Roselle, were dated in the months of September and October, 1941, long after appellant contacted the States witnesses Usher, Rankin, Linn, Louvier, and Latham, and sought to employ each of them to beat up Franklin sufficiently to put him in the hospital. These alleged forgeries were extraneous offenses and were offered in evidence upon the theory that they showed a motive for the murder of Franklin. The State’s contention in the court below, as well as in this court, is that she sought to get Franklin out of the way in order to prevent the discovery of these forgeries. The evidence fails to support such a theory because these forgeries were committed subsequent to the time she sought to induce the named persons to beat up Franklin. But even if these forgeries had been committed previous to the time she sought to employ these parties to beat up Franklin, we fail to understand how it would have prevented the discovery of the forgeries. Any member of the Board of Directors could have discovered them as well as Franklin. But she did not want him killed. She merely wanted him beat up. Consequently the forged checks did not establish a motive as contended for by the State.
The motion for rehearing is overruled.
