*1 107 person meeting having a male intercourse with sexual testimony by officer. of the had substantiated such testimony merely the woman His denied that he invited having purpose intercourse. sexual come to the hotel for the gravamen offense, furnished the and who That is the girl only knew incidental. If he number or the name of the is purpose prostitution he that called was wanted for the she guilty. testimony her, know is did not he is His merely an element of the state’s case denial of essential does not an affirmative defense. constitute
Finding judgment error, no is affirmed. reversible Robbins v.
Charles William State 27,626. 15, No. June Rehearing Denied October Bailey, Bailey, Martin & Gene James H. Martin and Rob- appellant. Benavides, Dallas,
ert C. Attorney, Henry Wade, Criminal District Fred Bruner, Har- vey Lindsay, Jerry Shivers, George P. Blackburn, Assistants Attorney, Douglas, Attorney, and Leon State’s District Criminal Austin, for state.
BELCHER, Judge. fifty malice; punishment, the
The murder with offense is years penitentiary. in the age mar- appellant, 19 and shows that state’s evidence Ruth
ried, teenage of Mrs. boys met home and at the several there, 1954, Patti Craig 3, with July and 9:30 P.M. on about beer, gin and Craig, age 13, ate, drank some and Pat Jetton both Craig the Mrs. left whisky, played player danced. a record and an P.M., stating return in about would house that she about following hour, 2 o’clock the return until but did not morning. Craig took he appellant home that arrived the When automobile, shotgun which from his
a .410 double-barreled dining placed in the room. Hor- Craig left, A.M., July Karl After Mrs. about 1:30 Kuykendall
mann, (the deceased), Kenyon and Tim Charles Craig, yard, the was in approached house where Pat who the “Madge” re- there and were not told them that her mother and quested them to leave. gun, time, the appellant met them at At this obtained the door, gun just the into flower bed outside and fired the the door and then left shotgun. Appellant through with door the back running toward boy from deceased’s automobile
then saw and, failing stop him object” hand in his house with “some pellets gun calling, front of him and some struck fired the boy. and, gun as he entered the front reloaded the Appellant then standing by who deceased was called porch, screen and, him the deceased was his back to as living door with room mortally wounding him. in the back appellant him turning, shot nearby, Hermann, stay who was where he was Appellant told gotten. time, appellant Kenyon At get what he would or think,” go and and then left got somewhere “I’ve said officers had arrived. before Craig This was home. standpoint, testimony shows From appellant she asked to take the house left Mrs. in the person came place no uninvited and see arrived, Kenyon who house; that when Hermann door, invited, them at strangers he met appellant not bed; gun flower fired the into them to asked leave again appellant talked they proceeded where into the house shotgun. through door with the back them and then left scream, door, going Pat he heard Upon the front screen holding her living standing by room door deceased saw de- her alone. The deceased leave arm and he demanded that turning him toward ceased, appellant, while who had his back to back, moving and, your was “I’ll throat” said cut gun caused the to be his knees struck a couch which time, ap- discharged At this and the struck the deceased. bullet pellant “I didn’t mean to it.” said do cross-examination, appellant it clear that de-
On made of the accidental dis- fense was was the result *3 charge gun, intentionally of and that he did not shoot himself, Craig, in defend- deceased in defense either of of Pat or ing the home. court, charge, self-defense, in defense of submitted
another, shooting, property, and accidental all of defense against jury appellant. which the resolved Appellant challenges sufficiency to of the evidence sustain his conviction for murder the offense of with malice. shows, standpoint,
The evidence herein from the state’s that shotgun was not fired that shot but under back, range, the deceased in the at close and circum- facts wanton, unjustified which stances were reckless and auth- finding by jury a orized was with malice. State, Morse v. 154 Texas Cr. R. 2d 376. S.W. Appellant impeach was allowed contends the state its Jetton, witness, on
own Patti re-direct examination without having proper predicate. laid a Jetton,
The record shows that Patti while on cross-examina- Craig, upon leaving tion, P.M., testified Mrs. home about placed appellant. in the house These facts had not brought they counsel until on been disclosed to state’s examination, pleaded re-direct the state cross-examination. On surprise permission to cross-examine her and asked as con- grand tradictory jury. such matter before statements grand jury of such did tell the Said witness answered she cross-examination, not and the state did facts related on as any testimony same, therefore thereafter offer to contradict any perceive we are here error. unable to argument Appellant complains portion of that of the state’s attorney to the referred to Pat wherein the state’s “living debauchery.” in a house of promptly appellant’s objection thereto The court sustained although given and, upon request, no instructed reasons were disregard statement, grant ap- such declined but mistrial, pellant’^ excepted. motion for to which he Considering response prompt trial court’s action together objection request, with the facts unchaperoned occurred circumstances shown have early morning hours, by young party in the attended married teenage girls present, not and other men whose wives were two teenage along intoxicating boys, presence and with the use of liquors, error conclude that no reversible is here shown. we
Finding error, judgment no trial court reversible is affirmed.
Opinion approved by court.
ON MOTION FOR REHEARING MORRISON, Presiding Judge. *4 appellant are to counsel for a We indebted brief scholarly argument. a
and forceful original Appellant’s On submission we did not discuss Bill of Exception testifying No. 3. shall so now. We do While in his own behalf, appellant jury married, told that he was a had child, living family. night and was He his stated that on the had of the homicide his wife told him that she had ar- made rangements go sister, to to the show with her and he told her that going he was over to the house to eat steaks. then He was on cross-examination if his wife had asked not sued him for di- during following objection month vorce homicide. His sustained, jury disregard and the was instructed was to un- appellant’s question; but motion for a answered mistrial was separate questions He then asked nine overruled. was about a following he and period the homicide of time two-weeks’ objected the first Appellant to separately. wife had lived his then asked He was three, objections overruled. and his were interposed. objections remaining questions, and no six general objection to the interposed a counsel then the witness” have asked “questions and answers that been convey purpose questions was to asserted separated appellant had jury and his wife the inference that the tragedy. objected then to counsel’s statement over the The state objection. inference, sustained this last and the court objection going sustain the The court then “and I am stated down, Mr. you questions, haven’t it to some of those but broken Martin, you objecting to.” as which ones are evidence, objecting
Counsel then stated he was all the objection. followed and the court overruled this by This was blanket argument answer between counsel about what witness’ been; questions had propounded then four more of the same nature were witness, general finally objection was in- “disregard terposed sustained, and the court told the then, gentlemen.” questions those appears
It thus the trial court entertained some doubt rulings prior upon as to the wisdom of some of his called rectifying counsel to assist him in mistakes. Patient counsel his should, circumstances, under such the court and have assisted pointed objectionable him the matter which he wished jury’s withdrawn from the consideration. appellant’s testimony,
In view of the which was calculated impression to leave the with the that his visit to the house been with the consent of wife and that she had by remaining following ratified such consent with him the homi- cide, we loathe would be to reverse conviction because the in permitted prove state was that she did fact him leave for a period question. time after the two-week some urged holding It is we reconsider our are facts support sufficient to the conviction for murder with malice. Appellant points positive all out that on the evidence subject would indicate that was left in *5 Craig companion the deceased and his the house guests “crashing party” act were in the uninvited who was killed. at time the deceased pointed original opinion appel- in
We our that when by lant was cross-examined the state denied he killed Craig protection emphatically deceased in home and stated intentionally weapon that he did not but that the same fire discharged chaise-longue. was Thus, when he backed into appellant’s testimony,
at the close of was rele- gated theory to a choice the state’s that the between theory been done with malice and the defendant’s it was entirely the of an accident. result record, believe,
After careful from review of the entire we house, approached the facts that the went around the back, together rear, the deceased from and shot him in flight appellant’s from the scene of the other homicide evidence, facts in was authorized conclude that aforethought. prompted he was in such act malice regret original opinion gin that our mentioned We one of beverages consumed at home on the support question. The record would the conclusion brought gin party some with them “crashers” but the same was not shown to have been drunk home. Remaining properly disposed convinced that we cause originally, rehearing motion is overruled. Lacy Wingfield
Ex Parte 27,652. May 25, No. Rehearing Relator’s Motion for Denied June Rehearing Relator’s Second Motion for Denied (Without Opinion) 12, 1955 Written October