*1 that, The rule announced in Maddox evi- case where the dence an equal opportunity liquor, possess of others to outstanding disprove hypothesis evidence must such possession accused, to be applic- sufficient to show is not present able to case at bar because whisky found and thrown from his car. Appellant next insists that the conviction be- cannot stand cause possessed the evidence is insufficient show pints whisky eleven one-half found in the bar ditch. again necessary pass upon It is not that we this contention evidence, because, appel- sufficiently shown that pints whisky possessed lant four found in the one-half nearly whisky quart car and the full thrown from the 4/5 car, give quantity rise is of a to the statu- sufficient possessed tory purpose for presumption that sale. rehearing is overruled. for
The motion approved Opinion Court.
Ray v. State Wilson 27,933. January 25, 1956. No. Rehearing April 18, Appellant’s Motion for Denied 1956. Rehearing Appellant’s Motion Denied Second May (Without Opinion) 9, 1956. Written *2 Cannon, Groesbeck, Carl Bond, Teague, ap- and Bowlen pellant. Schultz, County Joe Attorney, former Seay, County Lewis M. Mexia,
Attorney, Bradley Geren, by Geren, Groesbeck, & Attorney, Austin, L.L. Douglas, and Leon State’s for the state.
DICE, Judge. malice; conviction is for murder punishment, years penitentiary. ten in the This appeal case, is the second of this the first conviction having been reversed this Wilson 161 Tex. Rep. 152, Cr. 2d S.W. 798. Appellant wife, deceased, and his lived in Mt. Calm community County. in Limestone The evidence that on February the appellant, afternoon on an occasion when the wife, attempting his some children were to drive through gate cow a pasture, appellant to a threw a rock injuries which struck his wife on the head and inflicted fatal days from died later. which she three theory intentionally was the state’s threw rock at his denied and contended
his wife was struck accident.
Appellant’s son, age Wilson, Ray years Dee who was six at the tragedy help- time of the one the children who cow, state, upon being drive the called as witness testified that when his father further behind the cow and that testified, ”He throwed his mother was towards threw the rock my mamma,” behind his father, father was “* * Ray didn’t throw it at the cow.” Dee further testified he had before, seen father a wrench hit his mother once with leg. eye, over the and with a hammer on prior offered witnesses whose showed The state towards harsh and cruel treatment course *3 testimony it shown that on their occasions his wife. Under helping appellant’s wife be him with the farm would curse, slap her her. strike with his fist and he would work prior day further The state’s shows that to the coming tragedy appellant, upon to the the wit- the home of the wife, Kline, why bring when asked he did not ness Alfred his get “Well, along witness, just her. She stated rock,” knock in mad I could her the head with so makes me died, appellant, hospital in wife at the Waco before his and that telling tragedy happened, the stated L. W. Neal how the witness accident. not an that behalf, Appellant, a witness in his own testified he as that wife, hitting cow, his the with no intention of rock at the
threw by accident. He further denied was struck that she stated and he which the state’s witnesses testified of misconduct acts the wife, upon and offered numerous witnesses committed during wife her lifetime and who him had known who very appeared in to be much love and devoted that testified other. to each accept the state’s version of the trans- jury chose support the sufficient to its ver- find evidence
action dict permitting that court erred in the the
Appellant contends evidence, objection, in over his a rock that introduce state stains, grass Jack blood Sheriff Bothwell contained spot at the picked near a of blood scene the testified killing investigation days making four an thereafter. It while sufficiently appellant’s is that the rock was not contention that testi- the identified as the one him in view of sheriff’s thrown say appellant’s mony the that hit that he could not it was rock appellant’s testimony wife that he threw and the the rock than the rock introduced in evidence. smaller record, permitting the Under the not in court did err prosecutions rock to admitted in evidence. In for homicide alleged weapons committed, with which the crime was Jur., committed, have been are in 22 Tex. admissible evidence. rock, p. having 791. The been Sec. identification as killing, found at the scene of the was sufficient to authorize its positive admission in evidence. The lack of identification weight rock as the one thrown affected its admissibility. Jur., evidence rather than its 18 Tex. Sec.
p. 330. findWe merit contention that upon weight by presuming
commented of the evidence that the rock introduced in evidence was thrown him in instruct- Paragraph charge No. 13 of the rock deadly weapon se, introduced per the state was not a presume did that the law kill intended to used, is, “from the deceased means the use of rock.” apparent the court’s instruction referred to rock evidence, and, which had introduced in been admission threw rock that killed his such in- possible injury to him and no struction favorable shown. *4 Appellant complains of the refusal of the court declare following by special a mistrial a statement prosecutor made cross-examining appellant’s while witness A. E. Thatcher.
The record that after the witness had testified on direct-examination that couple, and his wife were devoted by on his cross-examination state’s counsel the follow- ing transpired: “Q. if down And he was pregnant there his wife was holding up, working her on a sweeps, cultivator and putting she let slip
them on tractor and her end of it slapped and he her under the you her cursed circumstances would think would a devoted husband? A. Did he be he do that? “Q. asking you if I he did you am do that would think * * testimony in did, this record there he he did do fi Sir, I A.? husband you he was a devoted would think that he did that.
don’t know that “Q. Well, assuming That’s hard did it? A. do do.
“Q. you? You assume it? A. Could “Q. my heart certainly whole can and I believe with that he did it.” upon appellant’s objection remark
It is shown that
counsel,
by
jury
to consider
state’s
court instructed
not
any
counsel
to make
the statement and then admonished
not
again
answer
witness not to
such statement
admonished the
by asking
questions
question.
Appellant
by
insists that
counsel
the statement
state’s
guilt
expression
personal
opinion
an
of his
of
which
court’s
constituted such error that could not be cured
agree.
state-
instruction. With this contention we do
guilty
ment
not that state’s counsel believed
charged
of
oifense
that he could assume that
but
slapped
wit-
had
ness,
and cursed his
as testified to
a state’s
slap
that he did
and curse
wife.
and that
believed
so
argument
In
been held that state’s counsel has a
has
truthfully.
right
the state’s witnesses testified
to assume
R.
The record five bills of argument complains of certain made state’s counsel. lant complains special prosecutor Bill No. inquired seeing if in which he remembered all get up except Webb, sworn Mrs. witnesses Elizabeth suggestion Mrs. that at his Webb called and sworn ground Appellant objected court. on the the statement *5 by highly prejudicial. the record and not warranted was We argument complained manifestly of was so the do think prejudicial require reversal, as to and as the record harmful subpoena that Mrs. in the reflects Webb case and in court. on attendance
207 error, Bill the record shows No. does not reflect testimony. argument by complained supported of was By appellant complains Bill action of the court No. of the overruling following argument by objection in made to the special prosecutor: the state’s I to I don’t
“Now want talk about the witness Alfred Kline. meaning are, know what remarks here but I made they trying, up think are in order to A1 cover Kline, they try say to and I want to that he was a fixed witness thing you tell one is resent. And if want to go willing open this and to case into that matter we are ** They plenty do it. had time *.” reading argument, From a quoted, of the above is ob- it vious that the same was made state’s counsel in answer to argument by appellant’s counsel made and therefore no error is shown. By Exception Bill complains No. 7 of the fol-
lowing argument special prosecutor: made ** then, Hurst, they jump “Now Mr. all over him I tell you getting you get it is where witness come into * * * testify courtroom Why and it case. argument contention that such calcu- prejudice lated to against inflame the minds of the conveyed him in appellant’s thought and idea that attempted counsel had to browbeat and humiliate the attempt suppress state’s witnesses in an evidence. this With agree. contention do The demeanor of coun- examining sel in the state’s witness Hurst and the wit- other jury. nothing nesses been observed There is in the argument complained record or of from could be in- ferred that led to believe that any process his counsel had caused witness to evade and fail to appear testify. complains argument Bill No. 8 of certain made prosecutor special argument, sets out the entire ap- objection
pellant’s blanket thereto. bill This is insufficient and nothing presents portion for review because a of the proper complained objections of was failed objectionable portion specifically point argu- out the *6 208 complaining. Loving State, 152 Tex.
ment of which was State, 795; R. Tex. Cr. 214 S.W. 2d Watkins v. Cr. 24; R. Tex. Cr. R. 2d and Robinson v. 223 S.W. 6, 238 2d 193. S.W. By Exception appellant complains of action Bill No. 3 furnishing jury
of the court in with a form a verdict for guilty” the twenty “not after the concluded and been upon jury verdict for an had deliberated hour and charge, originally de- The record minutes. livered forms of of containing jury, three had attached thereto a sheet guilty jury verdicts, in found the event the aggravated malice, malice, murder murder without guilty;” assault, form did not contain a for a verdict of “not but deliberating jury that while the it was discovered guilty” verdict; furnished with a “not form of had not been upon returning in- their to the court room for additional and structions, the court sheet attached to corrected verdict including charge guilty” a “not form of verdict and instruct- room, sheet, detach return to the verdict ed and insert whatever on might place their verdict the correct jury then verdict sheet. The retired to corrected thereafter, minutes, in five returned into room guilty. their verdict perceive no error in action reversible We the court charge. correcting attached the verdict sheet addition The guilty” of verdict was of the “not form favorable to and for guilty” was furnished with a benefit. “not they returned their before verdict into court. form verdict injury record, Therefore, shown. Finding judgment error, no reversible affirmed. approved by Opinion the Court. APPELLANT’S
ON MOTION FOR REHEARING Judge. DAVIDSON, carefully considered have We motion for rehear- correctly disposed and remain of this convinced. original submission. cause on rehearing
Appellant’s motion is overruled.