Allen v. State

• Decision Date: 18 December 1940
• Docket Number: No. 21271.,21271.
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W.2d 384

ALLEN v. STATE.

No. 21271.

Court of Criminal Appeals of Texas.

December 18, 1940.

Rehearing Denied January 22, 1941.

Appeal from District Court, Gregg County; Clarence E. McGaw, Judge.

D. L. Allen was convicted of murder, and he appeals.

Affirmed.

E. A. Martin, R. L. Whitehead, and Richard Nicolds, all of Longview, Florence & Florence, of Gilmer, and Thomas B. Ridgell (on appeal only), of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted upon an indictment for murder and, the jury having assessed a penalty of forty-five years, he brought this appeal.

It is alleged that on the 25th day of February, 1940, D. L. Allen unlawfully and voluntarily with malice aforethought did kill Addie Stewart Allen by shooting her with a gun. The victim was the wife of appellant.

It will not be necessary in the consideration of the questions presented to detail at length the evidence upon which the conviction was had. Such statements as will be necessary are found in connection with a discussion of each question raised; however, it may be said there was no eyewitness to the killing which took place in the quarters operated by appellant and his wife known as the "Blinking Owl" and consisting of a beer joint and two bedrooms.

It is the state's theory that appellant and his wife had been getting along badly and were in a fuss constantly. She had hidden his two pistols some time previously and they had become rusted. The tragedy occurred after midnight on Saturday and after a disagreement between appellant and his wife, which apparently had some connection with the dismissal of a woman who worked in the place as an employee. Appellant admits the killing, but says that he had found the pistols which his wife had hidden and that he was cleaning the rust off of them, using some gasoline and oil. While doing so one of the cylinders became hung and in trying to loosen it the gun went off and his wife was killed accidentally. The issue is squarely presented. He either murdered his wife with malice, as found by the jury, or the killing was due to an accident.

When the case was called for trial appellant presented his motion for a continuance on account of the absence of a witness whose testimony was alleged to be material, because she "will testify to letters and communications had with the deceased, the wife of defendant herein; that such testimony is material and is vital to this defendant's proper defense in that said testimony will show that the defendant and the deceased lived together happily, and that there was no motive for the defendant taking the deceased's life at the time in question." It is further set out that these communications were made a short time prior to the killing and that there was no other person from whom this testimony could be secured. The witness was alleged to be living in another county. A doctor's certificate was attached certifying to the fact that she was ill and unable to attend court. The witness was the mother of appellant and he expected to have her present at the next term of court. The motion concludes, "Defendant would further show unto the court that this continuance is not sought for delay only, but that justice might be done." It is subscribed and sworn to by the appellant before his attorney as notary public.

Bill of exception No. 1 complains of the action of the court in overruling this motion for continuance. It requires no discussion of the law to show that there is no merit in this motion. The conclusions which he expected the witness to make would not be admissible as evidence. He did not seek to have the letters for what they may be worth. The motion does not meet the statutory requirements, in that it does not allege that it was not made for delay. Vernon's Annotated Code Cr. Procedure, Art. 543, Sec. 5. See, also, Russell v. State, 88 Tex.Cr.R. 582, 228 S.W. 948; Perkins v. State, 120 Tex.Cr.R. 399, 46 S.W.2d 672; White v. State, 131 Tex. Cr.R. 69, 95 S.W.2d 429.

Bill of exception No. 2 complains of the action of the court in refusing to submit the defendant's special requested instruction No. 11 which is designed to instruct the jury as a general proposition that whoever, in the performance of a lawful act, shall by negligence and carelessness cause the death of another, they shall be guilty of negligent homicide of the first degree. It then defines a lawful act.

There is no evidence raising the issue of negligent homicide. As stated, the appellant was either guilty of murder with malice or he should have been acquitted of murder under his testimony that the killing was an accident.

Appellant's bill of exception No. 3 complains of the failure of the court to give defendant's special requested instruction No. 1 defining, "reasonable doubt". We are unable to find any purpose for the charge requested, and conclude that the court committed no error.

On a motion for rehearing complaint is made of misconduct of the jury in two particulars. First, that the jury in considering...