*1 6
We see harm to in the com- cross-examination plained of, point these fail bills out wherein he was prejudiced thereby. Exceptions complains attorney’s
Bill of No. 8 of the district questioning having money wife about her offered parents injured party. It will be noted careful questions trial court instructed the to consider questioning A or answers. similar line of was held State, to be R. admissible Buchanan v. Tex. Cr. 769. S.W. Exception examined,
Bills Nos. 9 and 10 have been are overruled as insufficient show reversible error.
The evidence sufficient to sustain the verdict and no appearing, judgment reversible error affirmed. is Opinion approved by the court.
Y. D. State. Robinson v. March 7, 1951. 25136. Rehearing Motion Denied 1951. April 18, *2 Ikard, Judge Presiding. Hon. Frank Allen, Kouri, Butts, Falls, Locke & and D. Charles Wichita appellant.
for
George Blackburn, Attorney, P. Austin, State’s state. Judge. WOODLEY, Appellant was convicted for murder of Barbara Jean
Roberts, punishment assessed his at death in the electric chair. Negro 21-year-old girl, deceased was a had who been reared in Falls parents. where lived with Wichita she her She married,
had been but She divorced. was described as weighing pounds. 5 feet tall and
Appellant, Negro, sergeant also was a Shep- stationed at pard Air Force Base near Wichita Falls. He was married. 8, appellant’s
On March wife came to Wichita Falls on a night spending at a house visit, with after Street, train to boarded the return at she located 705 Waco following afternoon. her 3:45 the in Illinois about home train, taking appellant drove in his After his wife to the the deceased the Milam Hotel where Buick convertible car to up. leaving two her employed picked After her office, drove the deceased and friends at a dentist’s 4 P.M. Cozy remained from about Inn where Cafe or P.M. until about 6:30 During time, they quarreled the state’s evidence is that drinks, having arguing, a few and that while were were distinctly unfriendly. evi- Some the state’s
their attitude that she the deceased was mad said *3 dence indicates that having through appellant apparently her because of was with and his wife been there married had learned he was quits and remarked: woman me like that.” Other “No threatening appellant was the to the effect that evidence was accusing “trifling” him, he her and that and on deceased finger eyes say- by placing her between and her his threatened right ing going put a bullet there. that he was Leaving cafe, appellant the drove the deceased to house the together. spent time on Street where had much Waco pis-
Appellant possession had in his a .45 Service Automatic tol, missing from Air Force which was shown to been the have Base. house, deceased, entering engaged in
The after the was con- appel- Ruby her when versation with Lee Banks in bedroom pistol lant with and came in told the deceased “Shut the you up” say you?” and heard I will shoot “Don’t believe against holding pistol forehead of At he the this time not, deceased, replied and the deceased had no she did after pistol was fired. pointing pistol Ruby After Lee Banks toward the witness telling friend, anyone, boy her about the her to tell even car, killing appellant placed body in of the deceased floor, in mopped put mop had the bucket and he used gone car, picked up had the shell and the bullet which point through head, some one- to a deceased’s drove city half Falls mile outside of the limits of the of Wichita body in point lonely country left the on a dead-end road and nearby bucket and high grass left He also and weeds. mop. pieces away at apart threw the pistol took The he being bearing points, part number thrown the serial
various it recovered. an outdoor toilet was afterwards where body Saturday on fol- not found until noon about evening. During lowing killing Thursday time, ap- pellant whereabouts, inquired parents her as to the deceased’s any knowledge questioned, denied when visited thereof his usual drinking engaged friends, explained haunts and with his some blood seen on his car as blood he from rabbit had killed.
Appellant testimony denied all to the effect that there was any argument animosity between him and the deceased or had he threatened her. gun
He testified that he took the out of his car and into the staying leaving house where been he had with the intention of drawer, accidentally discharged it in a bureau and that it was playing while with it. he was disposing He attributed his conduct in body and his destroy
efforts to the evidence to the fact scared.” “was *4 by find error exception We no shown relating the of bills to proof, and attorney’s the state’s the district ap- statement pellant awas married man and that his wife visited him a few killing. hours before the part Such fact was admissible as a of gestae, question the res and was relevant on of the motive. Also appellant testified to the same effect. 3, 8,6, 11, Nos. complain Bills 15 and 16 22 inclusive of attorney. various remarks of the district prepared Bill No. 3 was and filed following the court approve subject refusal bill on the same by ap- submitted pellant. The court’s bill sustained, shows that the was the jury instructed counsel, consider the remarks of and also exception that no was taken to the or to remarks the court’s ruling. Therefore error is shown this bill. 19, 8, 15, on 6, 11, 22 are also insufficient and Bills Nos. overruling Bill and are grounds stated or more one overruled. during complains that the cross-examination
Bill No. attorney “Your has finished counsel remarked appellant, state’s you question if making you answer now objection, can to.” want jury instructed to dis- request made to have No impressed remark,
regard we are not with the serious- thereof. ness following relate to the occurrence: 17 and 18
Bills Nos. appellant he could not remember had testified that After pulled .45 back the hammer of the automatic not he or whether trigger, pulled and that he could not re- pistol he before pull having previously he did not the ham- sworn that member guessed prev- he back, appellant he had so then testified mer finally pulling testified he did testified, remember iously hammer back. wrapped body he had appellant then denied that Also a sheet and blanket. deceased attorney prev- then asked if he had The district body attorney wrapped, that the iously district so told jury. not want to be honest with the him if he did asked time, requested objected Appellant, the court to at this attorney’s jury not to consider the district remarks instruct inflammatory. prejudicial grounds of their matter, rule on the court could the district at- Before right torney to the court that he had ask the remarked nothing reprehensible improper question and that there counsel defense did not want it unless to be about honest. *5 appellant, the court could before rule on the Counsel objected objection, the last remark of the district at- former being prejudicial. torney unfair and as attorneys that their were Both stated remarks addressed attorney court, in the district connection therewith fur- why did want remarking know counsel did not that he ther honest. to be the defendant him to ask question objection, was not and the
The court overruled again propounded. nor answered bills, bills, appellant’s refused certified in lieu of These as objection beginning objections to an a of with the show series attorney of question. The remarks the district do
unanswered not being inflammatory, impress prejudicial or nor the us as requiring episode a of a nature reversal. entire as complains Bill was asked on cross- that in he went examination if it hurt back 1942 when lied and him penitentiary for it. bill, prepared by appellant’s The as court lieu of re- bill, appellant’s objection fused sets out that that was dis- going attorney trict was into the the 1942 details of offense. It is also objection shown that had testified without lie, that it bothered and him hurt and that had lied evening killing father of the deceased the when he said that he had not seen the deceased and did not know where she was. objection The question going amounted to into the brought of details the 1942 by appellant offense first out
properly overruled, and reversible error is not shown bill. complains question
Bill No. 4 propounded to Mrs. Rhuba Houston wherein she was asked as and deceased’s manner to whether or not toward each distinctly other was un- friendly. objection The for, was that conclusion was called question prejudicial inflammatory. The bill shows overruled, and that question was answered in the affirmative. The bill is in- sufficient to show testimony elicited was inadmissible general a description as terms upon of the emotions based parties conduct demeanor observed the wit- ness. See 19 Tex. Jur. Sec. 238. proper bill fails predicate to show lack of for the intro- testimony duction of witness, such from this and we find from the statement of qualified give had facts she herself to *6 complained bill. The witness testified testimony of in this ap- friendship with the deceased and acquaintance her com- on this occasion as them
pellant and her observation of meetings. pared with other cross-examining appellant, recites while
Bill No. 14 family life and whether into details of his state’s counsel went Appellant objected on an allotment. or not his wife received ground issue in the solved no such was immaterial the case, overruled, being exception was reserved. and the state, testimony by no was elicited is not what
It shown being answer shown. 4 Tex. Jur.
The bill is deficient and shows error. See 307, Sec. 214. overruling urged is in the
It is that reversible error shown charge appellant’s exceptions court’s of to the shooting contention made defense that was accidental. The charge given unconditional affirmative sub- that the is not an is applying all facts case. of defense in the mission jury was instructed that homicide is excusable when by accident, by happens applied the death and was to the facts appellant accidentally an if dis- instruction effect that charged gun acquitted, he should be reasonable doubt properly included. acquit jury upon
Also was instructed to reasonable deceased, (2) (1) kill doubt that intended to or gun loaded, (3) knew or knew there was cart- ridge chamber, (4) safety in the knew the was off. Having acquit if found that instructed killing suggested ways by any appel- accident of the agree testimony, charge lant’s we are unable to is particulars erroneous in the mentioned. complain
Bills 29 and 30 inclusive should granted a prejudicial have been new trial in- because flammatory closing argu- attorney remarks district in his jury. ment present
These are error bills insufficient to reversible argu- complained-of the reason that fail to show that arguments reply provoked xnent was not made in to or *7 appellant’s 618, Baggett State, counsel. 154 Tex. R. See v. Cr. 801, 173, State, R., 2d v. S.W. Trammel 155 Tex. Cr. 2d 719. S.W. argument opening counsel
Bill of state’s No. 27 relates to the following language wherein was used: the you Defendant that she do hear from “Not one word the girl; anything (meaning deceased) an the but honorable right bad, woman, if he had a
if she had been vicious her, against her, they proved by kill witness to would have it girl no, sought in her the kind of she was education and but training, you they objected, don’t testi- her mony.” hear the but complains quoted the over- bill of all of remarks and the ruling of his thereto. argument
We see no error in effect if the the that proved deceased had woman been vicioús would have it. complaining argument a part The bill of the is of which proper present is insufficient to error. reversible 28, prepared by court, Bill No. as the trial shows that no exception complained of, was reserved to the remarks that jury the was instructed not to consider remarks. is error No shown bill. prepared by court, Bill complains as trial parents during arguments of the deceased inside came
the bar of court and sat down inside the rail. Upon objection, parents of the left their seats inside
rail, among throughout and remained seated the audience remainder of the trial. parties jury jury
These had both testified before the and the knew parents were the of the deceased. regard There disturbance or remarks to this
episode jury’s attention, objec- would which attract and the tion was jury. not heard overruling
The trial court did not his discretion in abuse upon for new based the matters com- motion trial plained of in this bill. shown, urges
Appellant of the that misconduct of the trial failure and his conviction should be reversed for ground. grant upon motion for new trial court motion, alleged during In his the deliberations having agreed upon punish- jury, prior their Palmer, assessed, jury, ment to be that the foreman Carl get gave out in said that “if we the defendant he would life is, years it, all of his a few not have would to serve higher changed life, court and if our we vote death —that change judge and he would have would the sentence life *8 to serve it.” during alleged juror, It further unidentified that an (mean- deliberations, would
such ing made the “what statement gave Negroes) there if we out audience of think of us him less than death.” time, during alleged Palmer, juror It was such also that the light getting out
made the statement too murderers were case, a County, case in recent and that the Bourland Wichita punish- county, in which the tried said was discussed as case light. ment was too grounds supported
The for motion new trial on such Collier, juror on the the affidavit of the who testified Stean hearing of the motion. Palmer, jury,
Mr. Carl the foreman of the testified hearing and denied attributed to made the statements him. hearing jurors
Eleven all whom testified on the hearing foreman, ex- denied the statements attributed cept juror Collier. allegation,
A fact as which was issue was thus made for the trial court to decide. remaining allegations
Also of mis- the evidence as conflicting. conduct was
Having trial, motion we must con- overruled the for new elude disputed that the trial court found from the evidence that alleged did misconduct not occur. And we are unable agree that an abuse of discretion of the trial court is shown. exception
Other bills of have been considered and are over- ruled.
The jury, evidence is sufficient to sustain the verdict of the appears. no reversible error judgment The is affirmed.
Opinion approved by the court. appellant’s rehearing.
ON motion Judge. BEAUCHAMP, rehearing length
In his motion for at treats complaint Exception raised Bill of No. 6. have recon- We bill, together others, sidered this with all and have reached the disposed original properly conclusion that were of in the opinion. We have examined record and find further no error requiring a reversal of the case. rehearing motion for is overruled. *9 Braley
Lem v. State. February 14, No. 24959. 1951. Rehearing April 25, 1951. Denied