*1 271 рrobation. aof the revocation appeal an This is 11, 1953, plea April appellant on his convicted on The forgery, plea guilt sen- such to the crime of of penitentiary period for a of confinement state tenced to probated suspended However, years. sentence was five probation placed on with the sheriff Smith appellant years pro- period with such County five in accordance for a among things, required which, other order bation against the laws of this or offense “commit no state, other or the United States.” signed
Thereafter, petition duly the dis- it is shown attorney County, appel- sheriff of Smith trict against other the laws of lant had committed offenses the state grade he had three of theft of in that committed offenses thereby pro- of misdemeanor and had violated the terms said bation, having probationary all occurred within the time of his period. probation Whereupon court revoked sen- gave appeal from notice of such action of tence the court. nothing
There is in this record which calls review exception, the absence of a facts statement or bills filed herein. no briefs have been judgment is therefore affirmed. Whitaker,
Walter E. v. Jr. State 26,863. 17, No. March 1954 Rehearing May 12, Denied 1954 Appellant’s Rehearing Second Motion for Denied (Without Opinion) Written June *2 Burks Brown, Lubbock, and McNeil and W. Clifford appellant. Shelton,
Travis D. Attorney, Bowers, District Forrest Assist- Attorney, Wesley Dice, ant District Lubbock State’s At- torney, Austin, for the state. GRAVES, Presiding Judge. malice; punishment
The conviction is for murder with assessed is death.
Much of the appel- statement the case is taken from the years lant’s own herein. He was old at time committed, the offense years age and was 21 at the time of the trial. He a Force, was member January of the Air 8, 1953, was stationed at the Reese Air Base near Lub-. Force bock, Wethersfield, Upon Texas. He was reared in Connecticut. entering Army assigned Sampson he was first Air Geneva, York, Force Base in New and then transferred to the Lubbock, air Texas, acquainted base near where he became with Joyce Fern Skating He White. met her at Lawson’s Roller Rink times, finally at different attended her at her Lubbock many He times in her school studies and home. assisted algebra. acquainted He especially became well with with her mother, White, family. Her Mrs. Lena B. the members of widow, engaged nursery supervising at the time where parents periods small would be left their for short children operated boarding rooming previously of time. She eight place. house at such mother Mrs. was the chil- White dren, Joyce Fern, youngest child, boy named Perry, Lubbock, resided her in this Texas. The home friendship between Fern eventually continued for period very some of time and became fond of However, prior meeting August, each other. the deceased 1952, appellant girl had become infatuated with named Ulla Lindeborg, who lived Sweden. While she was in the United gave ring. very States he was to her and attentive After *3 Sweden, every she returned her to he heard from two weeks or so until he came Air to the Reese Force Base near Lubbock. Lubock, ring purchased After he came a to diamond in a he jewelry store and there sent it to her Ulla at address Sweden. However, after at he had been Air Force Base for Reese a period time, very Joyce They he became to Fern. attentive appellant’s had some conversations at diffеrent times about the feelings Ulla, girl. appellant toward the Swedish was the Since only young Joyce Fern, man who had shown such attention to relationship their soon turned into a of romance. sort About began cool, relationship time this ly his with Ulla to and eventual- Joyce their romance was terminated. Fern and the together every night during were almost school the week and usually every Saturday night. Finally permitted go him she to her,.and “petting operations” into with he claimed to have had just her a sexual with few weeks before her relations death. January, day On the 6th wаs informed flying to that he was about be transferred as a to San Antonio previously application training cadet. He had made for cadet passed “phy- and had all his examinations and cleared all sicals.” He to be close to a breakdown. claimed nervous On the January, packed 7th of he all his that he would not clothes use Antonio, purchased a at length and cotton cord ten San about feet expected a
from which merchant in town with he to up tie boxes in which his clothes were stored and leave them house on a certain street Lubbock. He Mrs. Gardner’s 8th, arrangements supposed January so he to leave on made with car. friend borrow his He took to soldier to these boxes good-bye Joyce lady’s say went to house and then to Fern. away He drove her house where she to about block from along walking worked package her and saw side the road with stopped her arm. He and she under said she that just got him, come store. into car with back She got they marriage. lengthy argument into a about their married, they deceased wanted to told could not be but he her against Army. Thеy be married because it was quit the rules of the argument thought settled, they their and he it was start- so away together ed in the car. had failed her mother She to tell they going. dark, disposed where he these About boxes up in the car he had tie cord. He which failed to out on avenue then to the deceased a certain back drove house, they algebra. re- where worked Her mother o’clock, argument tired Fern about 8:80 started again wanting go They had about to Antonio with him. San marriage argument quite an relative at that time. Just to their o’clock, ready he was that leave around 9:00 it is claimed put up argument new him at that she and told time pregnant. upset have him to Such statement seems to great pregnancy of the fact extent. He became of her convinced finally Mexico, agreed Clovis, take imme- her to New diately marry him to her. He claims that this news caused away have short black-out which to have cleared seems They left him dumbfounded. the conclusion came thing get married; drive to best was to would to do go Clovis, Mexico, he New to be married and would then They San Antonio. decided mother bе- not to tell deceased’s might pleased of their cause she with the idea have been running agreed away, her around in to meet back *4 go in have her he did not out front and house because to care get got there mother her in the into the car from see car. She they away. They quite out and for a distance drove went argued stopped country some, “do a little and then to but loving According they off testimony, took and his so forth.” to During car. their and had an act of intercourse clothes questioned for time deceased him to his love such relative was same Ulla greater love for her as to whether not the his Finally deceased than his love for deceased. statement, testimony, that made the him his as claimed prove to pregnant; just him “to she was not that told that she you you you that love dumb Swede.” love me more than that re- slapped couple all he and that this was She him a times thing was period knew he next he membered for time. The looking flashlight was and she down the front seat with lying reached face discolored. He the floor with her there on pulse, none. He then realized down and there was felt of her knowing dead, people that dead should be that she was thought try place bury buried, find a to He he would her. he through got up and started car and dressed out then road. is deemed to be a sufficient resume of his testi- back mony. This following day appear On the at when the deceased did not appeared for home search was started her. He home endeavoring every way and assisted in could in to find he gone. mother, suggestion out where had He made the to her gone sisters and brothers An- that she had doubtless to San suggested by tonio. This idea was also to the officers and him looking girl, eventually others who he went assigned, to San air field to which he leav- Antonio was ing However, her whereabouts undiscovered. the hunt for the girl’s body suspicion him continued rested since he person Eventually questioned was the last seen her. he rangers peace gave usually story officers and the same custody by until at last he was taken into such officers. He then requested presence minister, procured and the officers a Lutheran appellant privately. minister who came and talked him they Soon thereafter he told the officers that if would take Lubbock, Texas, back spot would he locate the where he had girl. body of buried the Lubbock,
He was taken to and after some effort with his hands, dug holes, own took a he shovel and six different five produced clothing having of which identified by Joyce Fern, been worn paraphernalia, and other shoes finally, along pipe just there, line been laid dug down about four to six feet and there found the Fern. There was no contention of kind that by anyone. fact, mistreated In own shows that he was treated at all times with consideration. There were no threats, importunities, just questioning, intermittent finally spot 18-year-old girl he led them the little where this days had been buried some before. justice peace A was called while was still grave. inquest He held an over the same and ordered an
autopsy, although autopsy, evidence, but the offered ex- was However, cluded the an court in of caution. excess the testi- mony Shaw, body, of Dr. Marie who viewed the evidenced the fact that had a the deceased met violent death. Joyce body
Dr. Shaw testified that she viewed the of Fern day January, 1953, on the at White 28th of a funeral home morning. the about 10:30 o’clock in the From external Lubbock appearance gash body, of the a found in the was left breast length. gash thereof about seven and one-half inches This death, evidently filled with dirt and had after made being bleeding in the there tissues around the wound. She body appearance fol- further testified relative to the lows: right collarbone, At the of the neck above the
“A. bottom demarcation, neck a line of above which the and head there was color, eyelids and blue in and there was puffy, swollen hemоrrhage present of amount with swol- considerable eyes. appearance eyelids and around the len to the tissues The bluish-black, tongue lips protruding were swollen mouth, protruding and the out was blue swollen scalp neck, around discoloration into the also extended as into the face. well “Q. Now, Shaw, basing your opinion upon your Doctor ex- basing Joyce your Fern White and amination opinion your experience total as medical doctor further on what, opinion, pathologist, jury your and as tell Fern the cause death White. strangulation. Asphyxia due to
“A.
“Q. Now, asphyxia? what is Smothering.”
“A. nude at the time witness saw the same High ring, excepton of Lubbock School dated with the ring finger. right on her which was cord, being worthy of note that same one also It is appellant, was found purchased the merchant spots human thereon. grave blood with two practically and testified to stand Appellant took witness thing for the state detailed be- witnesses the same exception: He claimed that this one fore the him, everything blank, girl slapped went time the car, the front seat of he himself on so found remained until flashlight on the deceased found turned and that was dead. *6 objected Appellant made the introduction the statement on the him to the officers while under arrest and not warned ground 727, that same was in violation of Article Vernon’s C.C.P., and was in the nature of a It is the con- confession. voluntary a tention the state that same was statement of the accused and therein he made “statements of facts or circum- true, that are found stances to be which conduce to establish finding guilt, property, such of secreted or stolen or the instrument which with he states the offense was commit- ted.”
Unquestionаbly, statement, appellant at the time made the diligent being deceased, only search was made for the not habitation, Antonio, place sug- her local but also in San gested by might gone. to which she have Un- doubtedly, time, testified, he knew at the and later so that she lying grave was then in a out in a field near Lubbock and was way place. or San Antonio other If the state- by him, ment had not been made time alone could tell whether clothing would ever have been discdvered or her ever having found, been both been earth. buried think the upon We confession would be alone admissible coming fact its provisions within the of Art. C.C.P. argu- There is but one other defense offered us in before enlarged upon brief, ment and the defense of amnesia. In Dictionary, New Webster’s International Second Edition, “amnesia” memory is defined as the “loss of due to injury, shock, fever, etc.; repression, gap brain also in one’s memory.” defense, be, This if propo- such there was based nothing sition that said that he remembered after girl slapped flashlight up him until he raised with body. only testimony amnesia, saw her in the case relative to appellant, Raymоnd Lemee, save that of the is that Dr. A. who, having propounded lengthy hypothetical ques- after dealing practically tion situation as testified to whole gave appellant, following testimony: *** “Q. you, Doctor, assuming I will ask all of facts those just I true, which have related to be such condition as is that probably bring May would or could about A. I amnesia? ask question one ?
“Q. Surely. Perhaps I A. wasn’t woman clear. The who ‘dirty Swede,’ girl was referred to as ‘bum’ ? that he loved
“Q. Well, really spiritual that---that loved in the man- things assumed, ner as he’s described it. A. All of those one *7 say very would sidered, definitely have that amnesia must con- be being true, strong and all of them I possibility think a could amnesia exist.” attempt This doctor qualify psychiatrist, did not as merely but physician, testified as a had that he had but little experience according psychiatry, statement, in to his own and person did not hold study specialized himself out as a who had in the system, being of the nervous in that itself with science which not familiarized himself. his own state- Under it here, ment as is offered it leaves us in as to whether doubt insanity or not defense includes itself in the claimed tem- porary event, any prudent amnesia. In сareful and trial judge charge insanity submitted in his the things, and in- defense jury, among structed the other that if the deceased met alleged by state, death the hands of as charged upon insanity resulting then he or from from amnesia any any insanity, disease of the mind form or and we find objection lodged charge. However, thereto at the court’s trial, argument the presented for motion new well and as as the brief court, objection Paragraph this find an we made charge. Bearing 8 of the court’s in mind the that fact oral statement of the which defendant was introduced evidence appellant’s objection, over the attempt which it an carried with freely voluntarily to show that said statement was not and made by might by duress, the defendant and have been induced threats, coercion, etc., jury the trial court instructed fol- lows: you
“You are instructed cannot state- that consider oral defendant, evidence, ment of the which has been introduced into any purpose case, you this unless first find the evi- beyond doubt, true, dence that said statement reasonable irrespective finding by you thereof, and aof of the truthfulness you evidence, beyond unless further find from the reasonable doubt, freely voluntarily by that said statement was made defendant, further, be valid in order that said statement against by you defendant considered evidence duress, case, threats, by this same been induced must not have reward, coercion, fraud, persuasion, promise hope or fear not make such oral person in event he did to his of violence though you beyond statement, a reasonable and even believe by made the defendant doubt, statement was that said oral beyond voluntarily, you find freely must further believe doubt, in the case that that there is other evidence a reasonable tends to corroborate same.” charge place, opinion
In we are of the first they carefully proposition laid that before before the defendant, they must find that could use this statement of the true, conjunction it and in therewith determine its truth- fulness, freely must further find that it was and volun- tarily made defendant and not induced threats or beyond coercion, then, they also rea- even must believe freely voluntarily made, and sonable doubt that it was only then, there was evidence in the case аlso other which tended to corroborate the same. over-solicitous, perhaps, think the court was ad-
We *8 clearly justified such, mission of the statement that was as by no attack made thereon save the fact that it was made the custody, to the officers who had him in and therein guard every right the court endeavored to of in the charge however, jury. observe, objection this to the that no We charge, appellant evidently being was leveled at the satisfied delivery. therewith at the time of its many There are informal in the record which not bills are
prеsented us, argument, either the brief or in the but exception we do find certain formal bills of which we will at- tempt to discuss. 4, during trial, progress
Bill No. which was taken the the of complains testimony Grady Harrist, of the of Sheriff of Lubbock County. detailing great length testimony After that was by appellant, by state, offered well as as that offered question was then asked the witness as follows: you know, absolutely far “So as there is no motive in this — girl?” case for this the death of this question objected by attorney This the district follows: Honor, object
“Your question; province I to that it invades the jury.” of
280 sustaining objection think the We court was correct declining permit question the witness to of answer not, being whether there be a motive or that matter one within province of However, alone. is a motive convenient thing always necessary not one. State, 345,
In Rep. (2d) v. Jones 153 Texas Cr. 220 S.W. 163, this court held: “Motive, useful, necessarily while shown in is to be esti
mating citing investigation,” an offense such the one under p. 254, 12 Texas Jur. sec. 32. State, Rep. 552, See also Holland v. 152 Texas 216 Cr. S.W. (2d) 228; State, 220, 294; v. Fox 95 Rea Texas Cr. R. 253 S.W. State, v. 77 Texas Cr. R. 706. S.W.
Bill part No. relates to the claimed error on the admitting trial court Shaw, the evidence Dr. Marie state, concerning body witness for the of the examination alleged inquest the deceased in connection with the held justice peace. appellant’s of the It contention that the testimony inquest pro- was inadmissible because the so-called ceedings illegal that, therefore, and void the evidence 727a, illegally obtained, the doctor was and tenders Art. C.C.P., support of such contention. pathologist shows that Dr. Marie was a Shaw pursuance this justice examined order of the peace ruling thereon, as above set In forth. the court might
refused to allow the witness show matter that she autopsy upon have ascertained virtue of the *9 girl. merely by deceased ing She testified to what observed look- body nothing lay at the as it in funeral the home. There is testimony in upon autopsy her to show what she found the says, that authorized, improvidently appellant by jus- so the the peace. Any eyes tice of the who had could see the same witness thing as this doctor have seen at the time that she claims to body viewed the of the The deceased. state therefore offеred testimony any autopsy deceased, to relative made of testimony we see no error shown as found in the doctor’s in the record. suggested corpus
It is that in cause has not delicti this proven. properly “Corpus “the delicti” means crime,” might be, whatever offense the facts herein it under proven, opinion we are of the that the state showed that
281 by applied Fern her death means White came to of violence to body. ap- her The itself fact evidences the during pellant person lifetime; was the last seen with present at the scene time of her death body. and entombed her early Kugadt State, 681,
In the case of v. 38 Texas Cr. R. 989, very comprehensive opinion, Judge S.W. Hurt laid proposition down the of an the confession accused could by violence, be utilized aas circumstance evidence a death and also to show whom the violence had been inflicted. From opinion quote we as follows: “A sufficient, confession is if there is such extrinsic corro- will, borative circumstances as taken in connection with the confession, produce guilt conviction of the defendаnt’s in the jury beyond minds of a a reasonable doubt. suppletory
“Such evidence need not be conclusive in its char- acter. made, When a confession is and the circumstances there- in existed, correspond related points proven in some with those to have may satisfy a jury be evidence sufficient ren- dering asserting guilt verdict proof accused. ‘Full crime, corpus delicti, independently confessions, required by any cases; is not many of the and in slight corroborating of them facts were held sufficient.’ 3 Am. Eng. Law, & p. Enc. 447. ques- We take it that there can be no prosecution tion permitted that the prove circumstantial corpus delicti, evidence the (the) and in aid thereto con- use appellant.” fession of the Kugadt case leading has been looked as the author-
ity relative corpus doctrine that in the establishment of the delicti, the excluded, confessions are not to be but are to taken be in connection with the other facts and circumstances evidence. State, See 235, 881; Alexander v. (2d) 151 Texas Cr. R. 207 S.W. State, Saulter v. (2d) 184; 151 Texas R. Cr. 209 S.W. State, Watson Rep. 438, v. Texas (2d) Cr. 227 S.W. 559. Under the present facts and cirсumstances the instant case, we safely think it can be said that choked Joyce Fern death White to with a cotton cord around neck. As to whether or not he was conscious same and in a sane frame of question mind at that time was a determine, punishment as well as the to be accorded the event against decided presented unobjected him. This was *10 charge. killing regretted, only say While the can to be we jury province their within when allotted to penalty
him the of death. believing, having presented us, Thus and no error judgment will be affirmed.
ON APPELLANT’S MOTION FOR REHEARING WOODLEY, Judge. original Upon appellant predicated appeal submission
upon points, six re-urged three which are in his motion for rehearing, namely:
1. insufficiency homi- the evidence to show that cide means, alleged was committed and in manner in the indictment. 2. The error admitting of the court in of Dr. the evidence concerning
Shaw autopsy performed an on the deceased, legal appellant’s timely objection over the in- that a quest had held, which, never been and in evi- the absence dence obtained autopsy result of the was inadmissible.
3. giving The error of the court in tо the the instruc- tions charge (quoted contained Paragraph in our 8 of the original opinion error). and submitted as fundamental attempt We will comply appellant’s request that we which, set out support find in we the record our conclusion that to sustain the alle- the evidence is sufficient n gation of the indictment killed the deceased \ c -he ,v by strangling her with bn cord. V
It is to be t state circum- rememberer relied prove i de- stantial evidence to :ct that killed the ceased, prove well as means used manner and killing. leading the appe
The statement of k and his actions clothing, officers to the buried tin eceased (cid:127) though cession, ad- constitute an the nature of a did not eased, cotton mission used a killed the nor that he doing so, injuries cord in or in fact inflicted serious it he upon her. *11 slapped to had the
He did admit the officers that after he by her, slapped deceased and he next saw her had flashlight back the de- of the the aid of saw that car times”; her neck that she ceased “had a cord around several oozing out of mouth. was black in face and was her the blood Appellant purchased of cord about ten feet cotton disposed a hardware store in late afternoon. He Amarillo packages tied, of the the cord be which he claimed were to lonely spot was in the when the where car he drove clothing, body. met her death. He buried some of then her her gathered He then the cotton remainder of clothes and the cord place. and buried them at officers another he led the When spot dug up spots cord had these articles the blood on origin. it which was of human
Referring to the articles buried after he had removed body car, deceased which included articles cord, the thing get every- cotton he testified that he wanted to rid of Joyce. only
that had to do with The cotton cord was article belong he buried that did not the deceased. gave testimony
Dr. appearance Shaw as to head of the death, neck of the deceased’s and the cause of her quoted original opinion. as in our also “I She testified: have you neck, appearance summarized to which of her head and blue, hemorrhages appearance swollen and and the eyes lips Also, soft tissues around her and her and mouth. - - changes the fact that she had these bottom started from the part neck, neck, including of her top around her - - positive strangulation head and neck are all evidences of cutting air, subsequent around the neck and the which off of the smothering would asphyxia.” be or what we call original testimony heldWe submission that doctor’s was, mentioned, testimony If it admissible. to- above gether original opinion, with that set in our is out sufficient to support finding and sustain the of the killed charged strangling cord, as deceased with a cotton in the indictment. pointed original testimony opinion
We out in our that no autopsy introduced made of deceased. Whether not, autopsy inspec- such be an or an an essential is more than usually body. partial tion the dead includes a dissection of question availability given of the at the findings inquest, magistrate or or acts of the is not us. before The doctor what testified as to she observed her examination and we hold it was not incumbent legal prove autopsy state to inquest held, that a predicate the admission such evidence. It was evidence unlawfully obtained. Paragraph charge, Our view as to 8 of the court’s which *12 original
set out in opinion, our is that it does not under the facts here instruction, authorize a reversal. As we view this the trial attempting protect appellant’s rights court was in the event appellant’s should construe to the statement officers aas voluntary confession and should entertain a doubt its as to light nature. Viewed in this it was more ac- favorable to the cused than he was entitled to. charge ,was
When containing pre- court’s Paragraph 8 appellant’s counsel, sentеd to objection calling he filed no trial court’s attention to his use of term “oral statement” possibility to the jury applying ap- the instruction to pellant’s testimony or to statements that were not the nature of a confession. contemplates, appel-
Had this been done as the law or had expressed lant charge, dissatisfaction with it would doubt have been amended. If would have been position present the matter for review. Remaining appeal properly disposed convinced that original submission, rehearing appellant’s motion for overruled.
Howard L. Hines v. State 26,955. May 5, No. Rehearing Denied June