34 S.W.2d 274 | Tex. Crim. App. | 1930
Lead Opinion
The offense is murder; the punishment, confinement in the penitentiary for thirty years.
The undertaker who handled the body of Jack Chilcote, deceased, described several wounds and expressed the opinion that deceased *456 was shot in the back. It appeared from his testimony that one bullet entered under the right shoulder blade, another over the left kidney, and that two or three went through the legs, there being six bullet wounds in all. The physical facts testified to by the undertaker were destructive, if believed by the jury, of appellant's defense. According to the version of appellant and his witnesses, deceased had drawn a pistol on him. Believing that his life was in danger, he procured a pistol and shot deceased several times. Appellant testified that deceased was facing him when he fired the fatal shots. He further testified that deceased snapped the pistol one time. In rebuttal, the state introduced an officer who testified that he examined the pistol appellant claimed deceased had snapped, and that none of the cartridges showed any indication that an attempt had been made to fire the pistol.
Bill of exception No. 1 relates to the action of the court in permitting a witness for the state to testify that Mrs. Martin, one of appellant's witnesses, had gone to the house where the homicide occurred on the preceding night, and that she and appellant had both remained in the house during that night. Appellant objected to this testimony on the ground that it was immaterial and irrelevant, had the effect of discrediting appellant and his witness, Mrs. Martin, on an immaterial matter. We are unable to tell from the bill of exception whether the testimony was properly received. We find nothing in the bill negativing the materiality of said testimony. As far as the recitals of the bill are concerned, the fact that the witness spent the night in appellant's home may have had material bearing upon some issue in the case. The statement that the testimony was irrelevant and immaterial and tended to impeach appellant and his witness on an immaterial matter constitutes a mere statement of a ground of objection. The mere statement of a ground of objection is not a certificate on the part of the trial court that the facts which form the basis of the objection are true. It merely shows that such an objection was made. Buchanan v. State,
Immediately preceding the homicide deceased and Ruby Dell Allen were alone in the bedroom of appellant. According to her testimony, deceased left the room and entered a room occupied at the time by appellant and two or three of his witnesses. It was in this room that the homicide occurred. Ruby Dell Allen, testifying for the state, was unable to describe the movements of deceased and appellant after deceased left the room. She heard shots and later saw deceased, who stated to her that appellant had shot him. Also, *457 appellant admitted that he shot deceased. The state declined to use as witnesses those present in the room with appellant and deceased when the homicide occurred, on the theory that they were intimate friends of appellant, and were prepared to testify falsely in order that appellant might escape punishment. After the witness Ruby Dell Allen had testified appellant made a motion to the court that the state be required to place the eye-witnesses to the transaction on the witness stand. The motion was overruled. Appellant himself placed the witnesses on the stand, and they gave testimony supporting appellant's theory of self-defense.
In the case of Thompson v. State,
"Since the rendition of the opinion in that case (Thompson's case) the doctrine therein announced has been very much modified, if not overruled. Kidwell v. State,
In the present case, as hereinbefore stated, the eyewitnesses were unfriendly to the state. They gave testimony material to appellant's defense, which, if the testimony of the state was to be believed, was contrary to the physical facts. Moreover, the state did not rely upon circumstantial evidence for a conviction. If the doctrine announced in Thompson's case, supra, is sound (and this is not conceded) the opinion is expressed that it has no application to the facts of the instant case.
It appears from bill of exception No. 3 that the county attorney stated, in argument to the jury, that appellant and his witness Fred Townsend had been driving around the city of Texarkana on the day of the homicide in a drunken condition. The bill fails to show that appellant objected to the remarks of the county attorney. The court qualifies the bill with the statement that appellant's attorney objected to the court's proposal to instruct the jury not to consider said argument. Manifestly the bill fails to reflect reversible error.
Bill of exception No. 4 recites that the district attorney, in his closing argument, stated to the jury that appellant ought to be given a long term in the penitentiary for the crime he had committed, and that a few years ought to be added because of the fact that he had framed his defense in the case. Without committing ourselves to the proposition that the argument was improper, it is observed that the bill of exception fails to show that appellant objected to the argument. It is qualified by the court with the statement that appellant's counsel objected to the proposal of the court to instruct *459 the jury to disregard the argument. Reversible error is not manifested.
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.
HAWKINS, J., absent.
Addendum
Appellant renews complaint of the refusal of his motion to compel the State to put on the stand the eye-witnesses to the killing, and insists that Thompson v. State, 30 Texas Crim. App. 325, sustains his contention. We are not able to agree to this. Speaking of the holding in the Thompson case, supra, Judge Davidson, in Reyons v. State, 33 Tex.Crim. Rep., says:
"That case is authority to the extent that it holds the State should prove the guilt of the accused by positive rather than by circumstantial evidence. It in no sense sustains the position of appellant that all eye-witnesses to a homicide are required to be placed on the stand and examined by the State. In fact, we do not understand that such a rule of practice has ever obtained in this State, nor that it would be a correct one under our procedure."
That it is not the law of Texas to require the State to place eye-witnesses to a given transaction on the stand to testify concerning same, is affirmed in Kidwell v. State,
Bill of exception No. 3 is not only defective in the matter referred to in the original opinion, but also wholly fails to set out any facts which manifest error. For aught shown in the bill, the facts stated in the argument complained of were in exact accord therewith. The same observation holds good as to bill of exception No. 4 complaining of the argument of Mr. Waters.
The motion for rehearing will be overruled.
Overruled. *460