Andrews v. State, 23527.

• Decision Date: 08 January 1947
• Docket Number: No. 23527.,23527.
• Parties: ANDREWS v. STATE.
• Court: Texas Court of Criminal Appeals

199 S.W.2d 510

ANDREWS v. STATE.

No. 23527.

Court of Criminal Appeals of Texas.

January 8, 1947.

Rehearing Denied February 19, 1947.

Commissioner's Decision.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

David O. Andrews was convicted of murder, and he appeals.

Affirmed.

H. R. Bishop, of Fort Worth, for appellant.

Alfred M. Clyde, Cr. Dist. Atty., of Fort Worth, Fred Stockdale, Dist. Atty., of Haskell, Ardell M. Young, Asst. Cr. Dist. Atty., W. E. Myres, Asst. Cr. Dist. Atty., both of Fort Worth, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a period of two years and six months.

The record reflects that in the late afternoon of February 11, 1946, appellant left Fort Worth in an automobile and drove out on Highway 199 and went to Azle. On his way out there he sideswiped an automobile and then ran head-on into a tree at a package store. On his way back to the city of Fort Worth, he drove his automobile into that of Robert Sidley Lee, who, with his wife and his sister, Mrs. Irene Tonn, were on their way to Munday to attend the funeral of Mr. Lee and Mrs. Tonn's father. As a result of this collision Mrs. Tonn was killed, Mrs. Lee was seriously injured and crippled for life, while Mr. Lee and appellant sustained minor injuries. Mr. and Mrs. Lee were carried in an ambulance to a hospital. Mrs. Tonn and appellant were in another ambulance. Mrs. Tonn was lying on a stretcher while appellant was sitting on a seat beside her. Mr. Johnson, at the request of the ambulance driver, accompanied him to the hospital. On the way to the hospital, appellant put his face over that of Mrs. Tonn and apparently was trying to embrace her. Mr. Johnson observed it and reprimanded him therefor. After they had carried the deceased and appellant to the hospital, he referred to Mr. Johnson as a s-n of a b____, whereupon Johnson slapped him.

The State's evidence shows that on the occasion in question appellant was drunk, or at least considerably under the influence of intoxicating liquor.

Appellant's first contention is that the evidence is insufficient to show that Mrs. Irene Tonn died as a result of the injuries which she received in the collision. With this contention we do not agree. The evidence shows that her brother (Mr. Lee) was driving the coupe, that his wife was sitting in the middle and Mrs. Tonn was on the right-hand side of the seat; that appellant with his car struck the right-hand side of Lee's coupe and forced the door against the body of Mrs. Tonn; that when she was taken from the battered coupe she was apparently dead. She was laid on the ground and within a short time was carried to the hospital in an ambulance, but she never spoke a word or moved any part of her body; that when they arrived at the hospital it was definitely determined that she was dead. The evidence further shows that she was in good health before and about the time of the collision; that immediately after the accident and while she was lying on the ground there was bloody froth coming out of her mouth. This condition indicated that she received internal injuries which resulted in her death.

We deem the evidence sufficient upon which the jury could reasonably base their conclusion that she died as a result of the collision.

Bill of Exception No. 2 reflects the following occurrence: While the witness, Frank L. Bailey, was testifying, the District Attorney asked him whether or not he had ever smelled the breath of people who had been drinking alcohol or whisky, to which the witness replied that he had. Thereupon, he propounded to the witness the following question: "With reference to the odor, what was the smell, if anything?" To which appellant objected on the ground that the witness had not qualified. The court overruled the objection and the witness replied, "It smelled like alcohol, sir." The court qualified this bill and in his qualification states that the defendant testified on direct examination by his own counsel that he had drunk both beer and whisky. The bill as qualified was accepted by appellant, and as qualified, it fails to reflect any error. The rule seems to be that when evidence is admitted without objection which is of like character as that objected to, no error is shown. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W. 2d 972; McLaughlin v. State, 109 Tex.Cr. R. 307, 4 S.W.2d 54; Williams v. State, 147 Tex.Cr.R. 523, 182 S.W.2d 715, and cases cited.

Bill of Exception No. 3 reflects that while the ambulance driver was testifying at the instance of the State, he was asked if there was any commotion or trouble in the ambulance while going to the hospital. Appellant objected thereto on the ground that it was no part of the res gestæ; that it was after the commission of the alleged offense. The objection was overruled to which appellant excepted. The witness replied that there was really no commotion or trouble, whereupon the District Attorney inquired of him if there was any difficulty between defendant and any one in the ambulance, to which the witness replied, "Well, Mr. Johnson spoke harshly to him". "Q. What did he say to him?" To which appellant objected on the ground that it was the act of a third party over which he had no control. The objection was sustained by the court, whereupon the District Attorney inquired of the witness as to what, if anything, the defendant did in the ambulance. To which appellant objected on the ground that it was not any part of the res gestæ. The objection was overruled and he excepted. The witness replied that defendant "had his face over the face of the body of Mrs. Tonn and was making objectionable moves and gestures that we asked him to stop, and it seemed to us that he was trying to embrace the lady." We see no such error reflected by the bill as would call for a reversal of this case. This evidence was admitted on the theory that it was a circumstance showing that appellant was intoxicated. A person in possession of his normal mental faculties would not do such act.

By Bill of Exception No. 4 appellant complains of the testimony given by Mr. Johnson to the effect that after they arrived at the hospital and after he had taken appellant to a room and placed him on a table, one of the nurses passed and he reached for her. The court admitted this testimony on the theory that it was a circumstance showing that the defendant was intoxicated. It occurs to us that the objection went more to its weight than to its admissibility.

Bill No. 5 shows that appellant objected to a certain interrogatory propounded to him by the District Attorney which the court promptly sustained before the witness made any reply and then instructed the jury not to consider it for any purpose. This bill, in our opinion, is without merit, and we see no need for an extended discussion thereof.

Bill of Exception No. 6 shows that the District Attorney, on cross-examination of appellant, propounded to him the following question: "You don't remember when you were down over Mrs. Tonn when she was dead and in the ambulance, and trying to feel her over and make love to her, do you?" To which he replied that he had a faint recollection, and further testified, "I remember, seems like that I was. I don't know like if a man has got any conscience at all and he is addled, he is liable to say and do that which he would not do otherwise." It occurs to us that this evidence was admissible on the issue as to whether or not appellant was intoxicated. A man with his normal faculties would hardly do what the testimony shows he did.

Bill No. 7 reflects that after appellant had testified as shown in Bill of Exception No. 6, the District Attorney remarked: "You do that when you are drunk, too?" To which appellant replied, "I wouldn't say that I was ever drunk." "Q. Have you ever been drunk in your life? A. Well, I may have." "Q. Did you admit that...