Acker v. State, 40602
| Decision Date | 18 October 1967 |
| Docket Number | No. 40602,40602 |
| Citation | 421 S.W.2d 398 |
| Parties | Lecil Edward ACKER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Spruiell, lowry, Potter, Lasater & Guinn, by Charles F. Potter, Tyler, for appellant.
Hunter B. Brush, Dist. Atty., Milton G. Mell and Kenneth D. DeHart, Asst. Dist. Attys., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, 15 years.
Soon after the return of an indictment charging appellant with the offense for which he is here convicted, appellant filed a motion with the Judge of the Court in which the indictment was returned asking for a speedy trial in which it was alleged that the State declined to agree upon a speedy trial without any valid reason.
Shortly thereafter the case was set for trial and on such date of trial the State filed a motion for continuance alleging that their only eye witness to the shooting was the wife of appellant and she was in the process of securing a divorce from him, upon the granting of which she would cease to be an incompetent witness and would be available to testify against appellant. This motion for continuance was overruled by the Court, whereupon the State filed a motion to dismiss the indictment in which the same ground as set forth in the motion for continuance was urged. In his order of dismissal, the trial judge gave the following as his reasons for dismissing the indictment:
'Lack of sufficient evidence at this time to obtain a conviction by virtue of the fact that the State's chief witness is incompetent to testify at this time; which have been heard by the Court; the Court is satisfied that the reasons so stated are good and sufficient to authorize such dismissal.'
Some five weeks after the dismissal of the indictment, Mrs. Acker filed a motion to dismiss her divorce action against appellant and said motion was granted.
Some three months later, another indictment was returned in another District Court charging appellant with the same offense as was charged in the earlier indictment.
One month later, Mrs. Acker filed another petition for divorce against appellant, and the same was granted in due time.
During the next interval of time appellant was tried upon an indictment charging him with assaulting Mrs. Acker with intent to murder her, (The date alleged was the same date as set forth in the murder indictment) and was by a jury acquitted.
In less than two months thereafter, the instant trial began. After appellant had plead to the indictment, a petition for writ of error and bond were filed in the divorce court in order to perfect an appeal of such judgment of divorce to the Court of Civil Appeals.
By motion in limine and by strenuous objection throughout the trial, appellant challenged the competency of Mrs. Acker to testify against him, alleging that the divorce judgment was not final, as the same was on appeal.
No new question is presented here. In Davis v. State, 96 Tex.Cr.R. 367, 257 S.W. 1099, the identical fact situation was before this Court and judgment was reversed because of the incompetency of the wife as a witness at the time of the trial.
The holding of this Court in Davis v. State, supra, seems to be in line with a well established rule. We quote from 97 C.J.S. Witnesses § 80, as follows:
See also Ex parte Hodges, Tex., 109 S.W.2d 964.
We overrule the State's contention, not supported by authority, that since Mrs. Acker was a competent witness at the time appellant plead to the indictment, she remained competent throughout the trial.
We decline appellant's plea that this conviction be reversed and the prosecution dismissed. Only 14 months elapsed between the return of the first indictment and the jury verdict in this case. There is no statute of limitation for the offense of murder in this State, and the reasoning of the Supreme Court of the United States in Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, has no direct application here.
As the Court did in Davis v. State, supra, we point out certain guidelines in the event of a future trial of such cause. Appellant's defense was that he was justified in shooting the deceased under Article 1220, Vernon's Ann.P.C., the adultery statute. He denied that he had ever threatened his wife (Mrs. Acker) or the deceased.
Mrs. Acker testified without objection on direct examination that during her marriage to appellant and long prior to the shooting, he had threatened to kill her and her former husband if he ever caught them together. She testified at this trial that appellant came to her home, found her former husband seated on the sofa in the living room, returned to his pickup, secured a .22 rifle and shot the deceased, causing his death. She was also shot in the melee, but apparently was not seriously injured. It will thus be seen that her account of how the homicide occurred coincided exactly with the threats she had attributed to appellant. Appellant's version of the shooting was diametrically opposed to such version.
On cross examination she was questioned about reconciliations she had had with appellant, all of which she admitted. She was then questioned about what fear had been engendered in her heart by these prior threats. She testified consistently throughout her lengthy cross and redirect examination that she feared appellant and had been under the influence of such fear for a long time prior to this shooting. Not once did she vary, nor was any evidence adduced from any other source indicating that she had voiced any lack of fear of appellant as the result of his threats.
After appellant had rested, the State was permitted over timely and strenuous objections to introduce into evidence portions...
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