HOWARD E. STICKNEY v. STATE
No. 31,109
Texas Court of Criminal Appeals
January 20, 1960
Motion for Rehearing Overruled March 16, 1960; Second Motion for Rehearing Overruled April 13, 1960
Writ of Certiorari Denied by Supreme Court of the United States May 31, 1960. Filed June 6, 1960.
It is shown in the bill that in response to the appellant‘s objections, the court admonished counsel that the argument was improper but overruled appellant‘s motion for mistrial.
The argument set out in the bill is not such as we would be authorized to appraise in the absence of a statement of facts.
In Clayton v. State, 126 Tex. Cr. R. 565, 73 S. W. 2d 527 the necessity of a statement of facts in order to appraise the bill of exception is clearly recognized. In the Clayton case, in which there was a statement of facts, the court in reversing the conviction because of argument similar to that in the present case said:
“The remarks in question might not call for a reversal in every case, but here a serious question is presented as to the sufficiency of the evidence. Under the circumstances we think the incident presents reversible error.”
In the absence of a statement of facts of the evidence in the instant case we are unable to say that the argument complained of presents reversible error.
The judgment is affirmed.
Opinion approved by the Court.
Dan Walton, District Attorney, Neil McKay, Samuel H. Robertson, Jr., Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
DICE, Judge.
Appellant was convicted of murder and his punishment fixed at death.
The conviction is for the murder of Shirley Barnes which the indictment alleged was committed on or about the 24th day of May, 1958.
The state‘s evidence shows that the deceased, Shirley Barnes and her husband, Clifford Barnes, lived in apartment 7 at 900 Ruth Street in the city of Houston. The appellant and Clifford Barnes were both employed by the Texas Highway Department in Houston and frequently the three visited with each other and went places together. The deceased, Shirley Barnes, was employed in an insurance office and when she failed to report
Following the finding of the deceased‘s body the appellant and Clifford Barnes were both charged with the murder and on June 10, 1958, warrants were issued by Justice of the Peace W. C. Ragan for their arrest. On June 11, 1958, a warrant was issued by the United States Commissioner for the Southern District of Texas for the arrest of appellant and Clifford Barnes commanding their arrest to answer a complaint charging them with fleeing from the State of Texas to the State of Louisiana to avoid prosecution for the crime of murder.
On June 18, 1958, the dead body of Clifford Barnes was found lying in a wooded area on a levee road in Fort Bend County several miles distant from the town of Sugarland. When found, the body was wrapped in a blanket and in a badly decomposed condition. Also found near the body was an automobile lug wrench, a woman‘s bathing suit, a pair of woman‘s pants and several towels. An examination of the body by Dr. Jachimczyk revealed two fractures of the skull and of the right jaw which the doctor testified could have been inflicted by the lug wrench. The opinion was expressed by Dr. Jachimczyk that the cause of death of the deceased, Clifford Barnes, was a fractured skull from blows to the head.
On June 20, 1958, the appellant was arrested by Constable N. D. Crawford of the Royal Canadian Mounted Police as he was changing a tire on his automobile on a highway in the
Appellant was returned to Texas and on June 25, 1958, made and signed a written statement to Lt. W. C. Doss of the Houston Police Department in which he confessed to the murders of both the deceaseds, Shirley and Clifford Barnes.
In his confession which was introduced in evidence by the State appellant stated that on Saturday, May 24th, in company with the deceaseds, Shirley and Clifford Barnes, he went to Galveston in his automobile; that Shirley and Clifford wore bathing suits and when they arrived they drove to West Beach; that after dark he and Clifford laid on the ground to sleep and Shirley remained in the automobile; that after Clifford turned over to go to sleep, appellant got up, went to the automobile, got a blanket and lug wrench and returned to where they were sleeping; that he had been thinking of how Clifford treated his wife and he then took the lug wrench and began hitting him; that Shirley then came out of the car and he “swung at her twice or three times.” Appellant stated that he then took Shirley to the water where he held her under the water; that he then took off her clothes and returned to the car where he laid her on the back floor board and covered her with a blanket; that he then picked up Clifford, rolled him in a blanket and put him and the lug wrench in the trunk of the car and proceeded to drive to the couple‘s apartment in Houston. Appellant further related how, when he arrived at the apartment in Houston he took Shirley inside, laid her on the bed, and after he had undressed and placed a pillow over her head he got on the bed and
It was further shown by the state‘s testimony that the pubic hairs found on the sheet under the body of the deceased, Shirley Barnes, had identical characteristics with pubic hairs of the appellant and that the sand removed from the trunk of appellant‘s automobile and from the ladies bathing suit found near the body of Clifford Barnes had identical characteristics with a sample of sand obtained on Galveston Beach. It was further shown that the blood stains on the lug wrench found near the body of Clifford Barnes were group “O” which was the same blood group as that of the deceased, Shirley Barnes. An examination of blood stains found in appellant‘s automobile disclosed that it was of human blood of both groups “A” and “O“.
Appellant did not testify but called as witnesses in his behalf, Mr. and Mrs. Jack Pullian, who testified in substance that they lived near the apartment occupied by the deceaseds, Shirley and Clifford Barnes, and that on the night of May 24, 1958, at around 9.30 P.M. they saw the deceased, Shirley Barnes and a man go into the Barnes apartment on Ruth Street in the city of Houston. Other witnesses were called by appellant who gave testimony which need not be summarized.
We shall discuss the contentions urged by appellant in his brief and oral argument.
Appellant complains of the court‘s action in admitting evidence of the search of appellant‘s automobile by the officers in Canada and of the fruits thereof over the objection that the search was the result of an illegal arrest and without a search warrant. The testimony of Constable Crawford, the arresting officer, clearly shows that he had received information, which he considered reliable, that a felony had been committed in Texas
Complaint is made to the court‘s action in permitting the state to show on re-direct examination of the witness Lt. Doss, that following appellant‘s arrest and return to Texas he accompanied the officers to Sugarland, Texas, and directed them to a certain place where they went. Appellant objected to the testimony on the ground that it related to a statement made by him while under arrest. The record shows that on his cross examination of Lt. Doss, the appellant had inquired of him concerning the trip in question. The appellant, having offered evidence of the trip, authorized the state under the provisions of
We find no error in the action of the court in permitting the state‘s witness, Walter Manswell, a newspaper reporter, to testify, over appellant‘s objection of hearsay, that in the early morning hours of May 25th, he received a telephone call from an unidentified person who told him that he wanted to report a double murder and a rape and wanted to give himself up. This testimony was in corroboration of that portion of appel-
We also find no error in the court‘s refusal to grant appellant‘s application for leave to file a second amended motion for new trial based upon newly discovered evidence.
The record reflects that the jury‘s verdict was returned into court on January 29, 1959, and on such date the court entered judgment thereon. On February 5, 1959, appellant filed his original motion for new trial which was set for hearing on April 15, 1959. On April 15, 1959, both the original and amended motion for new trial which were filed with leave of the court were by the court overruled and notice of appeal given by the appellant. This was during the February term, 1959, of the court and it was not until June 11, 1959, which was during the May term, 1959, that appellant presented to the court his application to file the second amended motion for new trial.
The record reflects that the appellant has been represented
The judgment is affirmed.
Opinion approved by the Court.
ON MOTION FOR REHEARING
MORRISON, Presiding Judge.
It is appellant‘s principal position on rehearing that his confession was inadmissible as a matter of law. If this court is convinced that under the holdings of the Supreme Court of the United States a confession is inadmissible as a matter of law, we do not hesitate to so hold. Davis v. State, 165 Tex. Cr. Rep. 456, 308 S. W. 2d 880. Before discussing the cases upon which appellant relies, we deem it appropriate to call attention to certain facts not discussed in our original opinion.
Appellant was a laboratory technician for the Texas Highway Department. He was arrested in Canada in the late afternoon of June 20; that night he made a statement in writing concerning this offense, after having been given the statutory warning required by Canadian law. There is no proof in this record as to the laws of Canada, and this statement was not offered in evidence. The next morning, appellant waived extradition, and when the officers from Texas arrived in Canada at 10:00 P.M. on June 21 appellant was delivered to them. A newspaper reporter from Texas had preceded them and was at the jail in Canada when they arrived. Appellant was represented by an attorney while he was in Canada. Late in the afternoon of June 22, the Texas officers talked to appellant at the jail in Holton, Maine, where he had been placed the night before, and he made a statement in which he denied the killings. They then took appellant to the airport and flew to Texas. They were accompanied on this trip by one or more newspaper reporters from Texas who were covering the story. Early the next morning, the party was met at the Houston, Texas, airport by appellant‘s mother and his attorney, and appellant had a private conversation with both of them. He was then carried to the police department, where he had another private conversation with his mother and his attorney.
Appellant was not shown to have been questioned any more that day. The following morning, appellant again conferred with his mother.
Late in the afternoon of the following day, appellant told the officer to whom he had made the statement in Holton, Maine, that he wanted to make another statement. The officer called appellant‘s attorney, who came to the jail, conferred privately with appellant, and then later in the evening the statement which was introduced in evidence was dictated by appellant to Mrs. Fisher, an employee at the courthouse, who transcribed the same and brought it back for appellant‘s signature, following which appellant was interviewed by the newspaper and television reporters and was then placed back in jail. The following day, the court entered an order granting appellant‘s then attorney leave to withdraw from the case.
With these facts as a background, we will attempt to distinguish the case at bar from those upon which appellant relies.
In Brown v. State of Mississippi, 297 U.S. 278, 80 L. ed. 682, 56 S.Ct. 461, counsel was appointed to defend Brown and his co-indictee one day, and the trial was held the following day. In the case at bar, appellant was indicted on June 26, 1958; a motion to quash the indictment was filed in September by the two able lawyers who defended appellant, and he was tried in January, 1959. In Brown, there was evidence of physical brutality. In the case at bar, there was none. In Brown, the
In Chambers v. State of Florida, 309 U.S. 227, 84 L. ed. 716, 60 S.Ct. 472, the accuseds were held a week and not permitted to confer with counsel or friend. In the case at bar, appellant was represented by counsel in Canada, was met by his mother and counsel of her own choosing at the airport when they arrived in Texas, and conferred with them privately on more than one occasion prior to making the confession.
In Ashcraft v. State of Tennessee, 322 U.S. 143, 88 L. ed. 1192, 64 S.Ct. 921, Ashcraft was held incommunicado and questioned continuously in relays for 36 hours. As stated above, appellant conferred privately with his attorney just a few hours before he signed the confession.
In Haley v. State of Ohio, 332 U.S. 596, 92 L. ed. 224, 68 S.Ct. 302, Haley was a 15-year-old Negro, while in the case at bar appellant had served a full term of enlistment in the Army, was 5’ 11” in height, and weighted 180 pounds.
In Leyra v. Denno, 347 U.S. 556, 98 L.ed. 948, 74 S.Ct. 716, the confession which was introduced was taken very shortly after the taking of a prior confession which the state court had held inadmissible because induced by promises of leniency. The Supreme Court of the United States held both confessions were “parts of one continuous process” and were inadmissible because Leyra was physically exhausted and emotionally upset after attending his parents’ funeral. We fail to see how it could be considered as authority here. The fact that Dr. Dwyer was present at the time the confession was made does not make this case controlling because appellant had already told Officer Doss that he wanted to make another statement some time before Dr. Dwyer arrived at the interrogation room.
In Fikes v. State of Alabama, 352 U.S. 191, 1 L. ed. 2d 246, 77 S.Ct. 553, Fikes was of sub-normal intelligence and was taken to the State prison, where he was held in solitary confinement; his father was not permitted to visit him, nor was his attorney. What we have heretofore said, we think, distinguishes the case at bar from Fikes.
In Spano v. People of the State of New York, 360 U.S. 315, 3 L.ed. 2d 1265, 79 S.Ct. 1202, Spano, after being indicted, was denied permission to see his attorney, was moved from place to place, and through deceit a member of the police force who had been a long standing friend of Spano‘s played upon the prisoner‘s sympathy and induced him to confess. No such facts are before us here.
In Blackburn v. State of Alabama, 361 U.S. 199, 4 L.ed. 2d 242, 80 S.Ct. 274, Blackburn had a long history of mental illness, plus amnesia, and testified that he remembered nothing about the confession. The defense of insanity was not interposed in the case at bar.
While we have discussed the facts in the cases cited only briefly, we have concluded that the statement of the facts in the case before us here clearly demonstrates that none of the authorites relied upon is here controlling.
The other contentions raised were properly disposed of on original submission.
Believing as we do that the confession here is not inadmissible as a matter of law, appellant‘s motion for rehearing is overruled.