*1 thе results of the blood tion and not to consider the evidence as to the tak- that he consented to test had a reasonable doubt ing of the same. support the conviction
We find the evidence sufficient to judgment court is appearing, of the trial reversible error affirmed.
Horace State Wilkerson 32,661. February
No.
MORRISON, Judge, dissented. Dallas, Law, appellant. B.
Howard for Wade, Henry Attorney, District Criminal F. William Alex- ander, ElUs, Burleson, Miller, Ben F. Phil Ed Assistants District Attorney, Dallas, Douglas, Attorney, Austin, and Leon Stаte’s the state.
WOODLEY, Presiding Judge years. murder; punishment, 99
The offense is alleged The indictment did with malice afore- Kathryn thought Fay by beating striking kill Wilkerson with a bottle. Wilkerson, Kathryn Fay the de- evidence shows
ceased, appellant. was the wife of *2 body lying nude of deceased was found on a bеd occupied appellant. room she with numerous lacera- There were body, the including over tions and bruises about the a bruise being cheek scalp, largest bone the left side and cuts the thе on going to the bone. pool on
There was blood in the deceased’s hair and a of blood bed, glass the floor at half the head of the and from a broken gallon bottle on the floor.
Appellant told the Officer that his wife had fallen off Senkel bed and hit her head. City
After his arrest a Detective made statement Dhority warning, Omitting which was introduced in the evidence. appears C.C.P., which requirements to conform to the of Art. 727 the statement reads: evening, August 21, 1959, argu- I
“This about o’clock had a my Kathryn the ment with wife and hit her on left ear with the my right played I side of hand. went outside and dominoes my My apartment. about 40 minutes then I went wife back into going get drink, said she do it and a I her not to outside and asked anyway. picked up gallon I and she said she was a half wine bottle bleeding the bed and hit her in the back of head. started thе I
and took her to the bathroom her head off and washed put bleeding. and some after shave lotion on it and it off slacked put I her on the bed and took all her off went back clothes and my plаying outside and started dominoes. I heard wife fall off put icetray bed and I went a her head and back inside on up ‘Signed, De- phonograph played cranked Sealed and livered,’ was over and wеnt back outside and soon as the record I phonograph went back turned inside and turned the off and My up I radio on. wife still on the floor and covered played I went back outside and dominoes fоr a while. came back beating in and tried to hear if her heart was when couldn’t up on help Then I lifted her hear it called for someone to me. the bed.” Ashworth, autopsy, there parts who testified
Dr. did оn different were some two dozen bruises lacerations deep longest scalp, a body, were in the several of which head, to the compatible with a blow the left cut over side head with deep a bottle. A laceration or tear over the interior liver, compatible surface of injury with type from be- ing abdomen, kicked in the compatible with fractured ribs type injury being which would result from kickеd during autopsy. ribs were found Dr. Ashworth testified that some the bruises could be ex- plained by having floor, fallen on the but others produced injury require greater serious internal a would body amount ing of force than wоuld have been fall- achieved relatively a distance, short height as from He of a bed. expressed opinion primarily the cause of death was head, blow injury to the and the to the liver could have had been it occurred first.
Appellant testified as a witness in his own behalf at the trial. His version of the death of his wife was she had been drink- ing wine; got go he her 11:30, to to bed about at which time very she was gonе drunk. He left and Later was about an hour. she “said going get somebody she was something to to drink from and I asked said, ‘Well, her you/ not to. kept I I will show so begging her, get not again, to drunk I because didn’t want her to get just drunk. I days, сame in I gone ten she and had been and said, get T will something my somebody/ from that is when I lost temper and hit her on the side of It the head with the wine bottle. broke and cut her head. “Q. What trying you your was temper? she tо do when lost trying get
A. She was me, to scuffling, trying get by me to go get to something neighbors.” to drink from some of the
Appellant further striking testified that after her with the bottle he took out, his wife to the bathroom and washed her hаir that she anger showed no hitting about his her with the bottle. “She only realized that I trying right was to do what for her was keep and wrong her getting again. from drunk She knew she had done getting morning drunk that starting again.” and washing After put bed, the blood off he her on the took her off, clothes quilt “gave covered her with a blanket or her a and towel and asked her to lie her there —so head wouldn’t start bleeding again.” left playing He the rоom and resumed dominoes young boy with a porch. on the Later he heard a room noise and when he went in he found his wife on the floor. He told her get to back in bed but she said the floor was cool and she was sick stomach, right shortly at get up. but would be all and would
He then go play said if she didn’t mind he would some more agreed dominoes playing. and she and he resumed way He checked on her later her hаlf under the and found bed, God, get said, “I said, down,’ lie she ‘Good bed and ‘No, I said, you am I lie right, still ‘All want to sick.’ lie there dirt,’ through in that and I to I went the bathroom. came back said, I again get ‘No, and asked sick.’ up her to I am still and she said, her if I anything, asked ‘No.’ went out she wanted and she play there to getting and it and we couldn’t see started dark dominoes, the other I her feet was on so come house and halfway I side of the under the bed and she about bed go my might well pulled said, ‘Well, as her, I shirt off and told said, might bed, you today,’ T as well company to go are no to me your company,’ and she forget enjoying to bed about ice say, me, didn’t I reached down she didn’t answer so celery box, got and some glass me ate a bite of of water and the box nibbling and shut beans and there on some cheese stood bed,’ now, get in said, up, let’s and turned ‘Get around * * * answer, and she didn’t .” and without murder with charge the court submitted accident, and assault, aggravated and the defense malice beyond a reason- jury acquit found unless instructed intentionally killed voluntarily able doubt that striking by beating and her death caused and that alleged bottle, with a as the indictment. jury’s verdict to sustain the We find the evidence sufficient *4 assessing his
finding appellant guilty of murder with malice years punishment рenitentiary. in at 99 the body of the the nude photograph On cross-examination a of concerning to and he was deceased was exhibited asked by part: in photograph. He testified various such bruises shown “Q. day? re- appeared that A. don’t Is there that how she just exactly looked, exact. call to how she be
“Q. you are there you that those bruises But said didn’t see the one on picture her thаt ? A. saw one on shoulder the her cheek.
“Q. display jury; that to the how about the You can’t you seeing picture, do remember bruises those bruises you put police or the like that when on bed when camе? like that. A. wasn’t bruised
529 “Q. say They You she wasn’t bruised that? like A. didn’t any only show like that at all bruises on her cheek.” In photograph rebuttal and another similar were one by identified representation the officer whо took them as a true of body scene; lying showing on the bed bruises body through eye. on the as he viewed them the naked photographs “they The objection were admitted over testimony anything to alreаdy don’t add which has been to, they marks, they testified show the bruises are inflamma- * * tory dispute they ’. There is as to whether were there or just not, he testified he didn’t them.” see relating photographs rule to the introduсtion of of
body may inflammatory be been has stated applied in a number of rather recent decisions. State, In 582, 625, Gibson v. Tex. 153 Cr. R. 223 we S.W. 2d said: “We think useful to the photographs the condition evidenced jury only kill, dеtermining in not an intent but malice, any always shown; also been held photographs have provided they any admissable serve neces- to illustrate sary point in the cause.” Ray State, 12, In v. 160 124, Tex. Cr. R. 2d we S.W. said: “Regardless previous holding ques- upon of this Court tion, it appears that the instant is case controlled the case State, 625, v 582, Gibson 153 Tex. Cr. R. it 2d wherein S.W. pictures was held that upon the deceased were admissiblе issue of malice and intent kill. Each an of these matters was pictures issue this case. We are unable to conclude that shedding light upon were not admissible as those issues.” State, 387, In Cantrell v. 156 Tex. Cr. R. we S.W. 2d quoted approval State, supra, with from “If Gibson and said: photographs disputed issue, serve to illustrate a it is immaterial inflammatory” are also Appellant pictures a number of cases were citеs where found Among inflammatory and to be not admissible under the facts. *5 Wooley State, 378, are v. these cases 218; 162 Tex. R. 2d Cr. 285 S.W. State, 15, v. 162 740; Shaver Tex. Cr. R. 280 S.W. 2d R, State, 552, v. 168 Cr. Borroum Tex. 331 314. S.W. 2d Wooley regarded authority case, v. State is not as in this for grounds.
the reason it was that regarded reversed on v. other Shaver State authority case, is not also as in this for reason best, grounds. it too was cases reversed on other At these two authоrity. seem to be dicta rather than Judge opinion reversing the Davidson wrote the of court actually case, grant upon Borroum the trial court to failure of special requested charge, Judgе a Morrison concurred while conviction, of intro- reversal of that he did so because 4, which duction into the Exhibit No. evidence of State’s photograph of the taken at the scene of homicide. deceased solely grounds upon of The Borroum the anything contrary case was not reversed controlling. If not photograph, introduction of and is here may as case, supra, be сonstrued said Borroum State, Ray State, v. rule in v. stated Gibson supra, hoding specifically such is overruled. photographs we find
We error in no the admission no for reversal. find error the record calls judgment is аffirmed.
MORRISON, Judge, (dissenting.) very recent hold- I remain convinced of the soundness ing State, supra, respectfully dissent Borroum evi- into of the admission affirmance of this conviction because bloody body photographs nude dence any case. light upon issue taken at scene which shed Beverly Bradford v. State Gene 7, 32,554. December
No. February Rehearing Overruled Motion