*1 alias Charlie White v. State White Charles 1957. 28,879. April 24, No. Rehearing Overruled Motion for Appellant’s 1957. October Rehearing Motion for Overruled Second Appellant’s (Without Opinion) November Written Percy Foreman, Houston, J. P. Darrouzet and Rogers, Victor Austin, appellant. Douglas, Attorney, Austin,
Leon State’s for the state.
BELCHER, Judge. murder; The conviction is for alleging the indictment “by strangling killed the deceased wire;” him with a was assessed at death. daughter Berkman, Mrs. Lambert brother, and his Calvin came to the farm home where she her P.M., husband lived about 1 21,1955, pickup; in a blue-colored asked about her living, father and brother were and she told and if him; had married if her that he further asked batching-,” “yes” (her mother told him “still and she were *2 years before) ; if her he next asked had that died several working, worked, to work what time he went and was in morning, at the Texas told that he and she him worked the at his he was due Quarry and left home about 7 A.M. because appellant employment by A.M. testified the She and how and still had some cattle asked if her brother father they also many, him had testified and she told about She morning every telephoning her a father that she had custom A.M., was un- and when she usually A.M. and 10 between 7:30 25, morning, July get telephone Monday on him on the able to father’s, 1955, neighbor to telephoned her asked her a she neighbor telephoned him, the soon thereafter see and about her father’s house. neighbor to Heidel’s that he was the J. Robinson testified C. hay pickup at the barn located
аnd that he saw a blue-colored farm of the Heidel some from the corral and residence distance A.M., 1955, July 25, shortly and thereafter saw about 8:30 leaving speed. fast the barn at a rate of Wednesday, Dobbins, buyer,
D. a cattle testified on C. July 1955, appellant another his home the аnd man came to borrowing pickup; appellant in a asked about blue-colored following Friday trailer which he wanted on the to haul his cattle, him head of and he told he could have it if he about 25 using P.M., it; appellant that he saw was not next about Sunday, pickup he to when came blue-colored day with the his and told him the man him other home had day (Monday) ; the decided to sell cattle next that this man they his them, had he take had 24 said would for and $1200 agreed highway. Burnet He that he were located testified go appellant see or 10 to with to the cаttle about 9 o’clock morning; A.M., to home at next Monday, returned 9:30
July 25, pickup, they and blue-colored went pickup out on Burnet road about or 7 to the miles they He farm. further at the Heidel arrived hay place he 24 head cattle corral some around; inspected сattle, after he had scattered man claimed to be owner of the came the corral who cattle and to them; give asked he for owner stated that what would give you “I $1200, he later he wanted and said: will for $900 money” them, go get appel- to the because the bank check, wouldn’t take a lant told him that the owner accepted. He further was later testified that he which offer go money asked owner to with him to bank get them, Mr. giving de- Schwertner’s truck to haul but owner coming reason clined that man from Burnet him, bring money to see and that the “You owner said: bаck here, get per- you you and I will sell them when back.” The claiming being son that his to be owner asked stated Roy name was took Poke. Robbins testified that C. pickup, him home in home, the blue-colored and after left telephoned he Gene Schwertner and went to Hei- money cattle; del pay with sufficient that while for the looking were at the cattle in the corral he saw “the blue pickup” yards come out of the one to the bushes about hundred east appellant pickup which was the same he had ridden with the morning; recognized occupants *3 pickup appellant cattle, pretended as the of the owner passed along in they who was fact Calvin as the road yards fifty away going west; about his hat and waived stop called for them on Schwertner blew the horn car, but the in Calvin White never looked their directiоn, they and that tried to overtake them in Schwertner’s car but were unable to so. do Heidel, Ed a son of the Felix Heidel who was
years age, of they together testified that a lived on farm city Austin, northwest of the A.M., of July and that about 6:45 25, 1955, he job Austin; left the farm for his east of that about day respоnse 1 P.M. that in telephone to a home, call he returned father, was unable to locate his pistol found a .38 Colt missing house, from the and also a missed roll of wire for pickup haybaler garage, from the and that their 24 head of morning cattle had placed since in been thе corral and fed some hay from the barn. Lang investigating Sheriff testified that while he was disappearance of Felix Heidel he took the into cus- tody, July and on 28 the place directed him ato about city six pointed miles east Bastrop grave to a tops trees; which had bеen covered pine with the cut from small they soft, when had removed about five feet of damp soil body Heidel, found the of Felix which was swollen and in tongue putrefaction a state protruding; that at depth of about two and one-half feet found a roll small wire. He further testified thаt was a wire around the body brought neck of the which was from the front to the back having “then some instrument of some kind been apparently placed wire, brought in the up wire around Then, twisted, it turned in this and then manner. out, open wire, this was left
was taken impressed very the wire was twisted and mannerthat into flesh all around the back where was, around the and that wire twist grave. as wire in the roll was the same found appellant pointed three testified also about He direction, Bastrop they, at his found a .38 miles east of pistol. Colt pistol shows that .38 Colt Sheriff
The ap- Lang July Bastrоp 28 east of under the direction of the on missing pellant pistol from the the same .38 which was Colt July 25, home on was, prior to and proof further shows that the deceased The good morning July 25, 1955, in health and had been on the working house and the farm. about the Lang stipulated roll of wire Sheriff
It was grave having was the same roll been found identified garage missing on the 25 from the wire which was Heidel farm. shows that within short time after grave was transferred removed from
of the deceased was *4 that the Austin. It further shown wire to funeral home in was body misplaced in Austin. and never found after the arrived was Williams, county physician Cоunay, M. of Travis Dr. Harold upper portions that he examined testified hands and wrists of the deceased the trunk puffy showed skin was swollen and that signs putrefaction; there was an indentation marked by nature of a constriction around the force caused some my finger “(I) to run index around the was neck in which able *** an an perhaps inch and inch It was between it. base of finger grove,” deep. went well down I know the and a half something around it” which had been wound and “that “fairly recently;” such indentation about released been by a such con- wire caused could havе been compatible the existence of human not striction would windpipe and end the to close was sufficient life it because opinion in his the cause of death and that the deceased life of any find strangulation, and that he did not to asphyxia due was for the of the other evidence account deceased the indentation about the neck.
On cross-examination Dr. did not Williams perform autopsy body; an part or examine the lower ligature did not know whether the he made constric- placed death, tion was around the neck bеfore or after but expressed opinion as to the cause of death assumed that placed was death. before testify any did not or offer evidence his behalf. opinion contends that the of Dr. Williams strangula- asphyxia
cause of death of the deceased wаs
due to
tion should have been
expression
excluded because it was the
opinion
disputed
an
on a
province
issue and
invaded
alleged
The indictment
by
the deceased
killed
stran-
gulation
opinion
only
with wire. The doctor’s
that the de-
strangulation.
asphyxia by
ceased’s death was due to
His testi-
mony hereinabove related shows the nature and extent of the
body,
examination he
condition,
made of the
describes its
gives
the facts as
opinion
such examination. The
complained
attempt
by
not
to state
does
how or
what means
killed,
оnly
opinion
deceased was
but
states his
as to the
cause
death.
State,
was admissible. Ozark v.
927;
State,
Texas
Cr.
S.W.
Tolston v.
93 Texas
50;
Rep.
Pinson
Rep.
Cr.
S.W.
v.
94 Texas Cr.
517,
corpus prove delicti of crime in it failed to the cause of death of the deceased and further contends that offered the state manner and means which the allegation deceased was killed was variance with the strangulation he killed with wire.
The state relies circumstantial prove evidence to *5 participated principal fact that killed or the as killing prove the аs of the deceased well as to that the deceased alleged killed in the indictment. was charged upon applied principals The court and law the of
submitting the case to the prior ap- the shows that to and had concentrated their pellant and White efforts toward Calvin cattle; Heidel, acquisition and sale the Heidel Felix B. the missing the and a wire were from the roll of day; farm that show that circumstances during persons last and were the with him Calvin White Appellant the officers to lifetime. pointed directed grave of Felix Heidel with to a from which B. removed, was and a wire twisted around neck grave shown a roll wire in the which was also found farm; missing the Heidel the same roll of wire opinion expressed the that the wire around sheriff grave. same of wire as the wire in the roll found in kind they, Appellant directed the officers to also missing direction, pistol from the .38 Colt It is evident that Felix B. Heidel came to Heidel farm. body. applied to his means violence are sufficient The facts circumstances to warrant finding par- support jury killed or strang- killing ticipated principal of the deceased as a charged ling him in the indictment. with wire as v. Whitaker Rep. 2d 172. Texas Cr. S.W. complains of the trial court’s refusal to instruct provisions jury in accordance with Art. Vernon’s P.C., object suppress is to Ann. crime and reform the offender. support in evidence in this
The nature of facts case charged pеnalty authorized to be assessed the offense weight any thereon a comment on instruction would make convey tend of the court to the the evidence — disposition made jury hence, that should be of the case as to the improper. would be appearing, judgment error is affirmed.
No reversible Opinion approved the Court. MOTION FOR APPELLANT’S REHEARING
ON Judge. DICE, evidence is insists insufficient to sustain reasons. for two
the conviction *6 First, es- wholly fails to it is contended the evidence pro- strangulation which tablish the essential averment that the duced the a wire because death the deceased was caused indentation of Dr. Williams rope. compatible neck of the deceased was a small with do not as render- We consider the statement Dr. of Williams ing strangulation the evidence insufficient show produced a wire. As of the deceased caused original shоwn in opinion, our reflects that evidence deceased wire around was found there was impressed Williams, expressing his into the flesh. Dr. asphyxia that the cause due of death of the deceased strangulation, examination of the of the deceased an he found indenture around between one and deep one and could have one half inches it been caused a wire.
In may proved by cir- homicide cases the cause of death cumstantial evidence. Tellez v. Texas Cr.
As our the court submitting applied principals the law of the issue appellant’s guilt again to the have We reviewed light appellant’s record in the contention and remain con- support vinced that is sufficient to evidence the verdict of evеry reason- other finding guilty exclude jury him and to guilt. hypothesis that of his able *7 is The motion overruled.
Opinion approved the Court. Bierma David v. State Graham 29,342, December 1957. No. Divine, Houston, appellant.
C. C. for Walton, Attorney, Assistant Dan Thomas D. District Attorney, Austin, Attorney, Douglas, District Leon State’s for the state. Judge.
MORRISON, Presiding city сorporation was convicted in court of at a speeding, punishment assessed fine of Houston for County Appellant appealed this conviction $200.00. upon County, a trial de novo Court Law No. 3 of Harris appeal to punishment His was assessed at a fine of $101.00. cor- predicated this court poration the sole contention is as- the fine because conviction was “voidable” court 9-b, 827a, greater provided sessed was than is Article Section Watson, parte 154 Texas Cr. is had Ex V.A.P.C. Reliance Rep. 167, 2d 255 S.W. opinion on in its the fact that this court overlooks
rehearing parte Seals, 255 S.W. Texas Ex Cr. Watson, supra, which parte portion 2d Ex overruled that Article 8 of of Section held that violation