Autry v. State

• Decision Date: 08 October 1941
• Docket Number: No. 21588.,21588.
• Citation: 157 S.W.2d 924
• Parties: AUTRY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 924

157 S.W.2d 924

AUTRY v. STATE.

No. 21588.

Court of Criminal Appeals of Texas.

October 8, 1941.

Rehearing Denied January 14, 1942.

Application for Leave to File Second Motion for Rehearing Denied February 4, 1942.

Appeal from District Court, Bandera County; K. K. Woodley, Judge.

J. M. Autry was convicted of murder with malice, and he appeals.

Affirmed.

W. S. Ethridge, of Bandera, and Morriss & Morriss, of San Antonio, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder with malice and sentenced to serve twenty-five years in the penitentiary.

The facts show that Hal Smith, the deceased, a brother-in-law of appellant, had some kind of an argument or difficulty with appellant, who was a constable, and during the controversy appellant's pistol was discharged, and a bullet therefrom striking the deceased just back of the left arm and ranging down through the vital organs of his body, and lodged in his right crotch, from which wound the deceased shortly died.

The facts surrounding the shooting were strongly contested; the State's witnesses testifying to what could be termed a useless and unprovoked killing, while appellant's testimony evidenced a struggle between the two contestants and an accidental firing of the fatal shot from appellant's pistol. Suffice it to say, these theories were both presented to the jury under proper and liberal instructions, and under our system of jurisprudence the jury's sanction thereof is binding upon this court in such disputed matters of fact.

The record is voluminous and contains many bills of exceptions, the important ones of which we will endeavor to notice.

The fatal difficulty took place near a gate and close to or in a motte of timber, which position was on the apex of a triangle, another angle thereof being the location of the home of the deceased, and the third angle being a wash place near a water well where the sister of the deceased, who was appellant's wife, and the mother of the deceased were located.

Mrs. Smith, the wife of the deceased, testified, over objections, that she was at her home on the morning of the trouble and heard appellant's wife say, "Oh Jess, don't," and then a shot, and she immediately ran out of her house and saw her husband on the ground and appellant on top of the deceased choking him; that Mrs. Autry pulled appellant off the deceased, and the mother of deceased then said, "Jess shot him." She immediately went to her husband, who walked toward the house and was calling for his gun, and the deceased then walked to the well, about 250 feet away, and bathed his face, at which time he made a statement to his wife, giving his version of this transaction. This statement was admitted as res gestae, and its admission is the basis of bills of exception to its admission. The witness then ran back to her house and got an automobile, and came and took the deceased, the appellant's wife, the deceased's mother, and the deceased's nine year old son Frank and drove to Medina City, about three miles away, to a doctor. This trip ended in town, so the witness said, all in about 20 or 25 minutes after the shooting. On the way into town Mrs. Hal Smith testified her husband told her that he was going die, that he could not get well, and then related his version of what occurred at the scene of the fatal shooting.

Bills of exceptions Nos. 1 and 2 complain because of the small number of special veniremen contained in the jury panel first presented to this appellant from which number a jury was to be selected, the number being 40 jurors; the main complaint being that evidently from such a small number there would not be enough men qualified, and it would be necessary to summon talesmen, which duty would ordinarily devolve upon the sheriff, and appellant contended that the sheriff was actively assisting the prosecution herein, and would be prejudiced in thus selecting and summoning such desired talesmen. The trial court overruled a motion to quash the venire, but did appoint a constable of a Bandera County precinct, without objection upon appellant's part, to summon such talesmen.

It will be observed that this was a special term of court, and that Bandera County is not under the jury wheel system; that its population in 1940 was 4234; that Art. 593, C.C.P., provides, among other things, that the jury commissioners shall select one man for every 100 inhabitants of the county, or a greater or less number, as directed by the court, which persons shall constitute a special venire list, from which list shall be drawn the names of those who shall answer summons to the special venire facias, etc. We think the trial court was within his rights when he thus exercised his discretion.

Bills of exceptions Nos. 3 and 4 relate to the introduction of a statement made by the deceased while he was being carried to the doctor at Medina City, which statement was testified to by Mrs. Hal Smith, the wife, and Frank Smith, the son of the deceased. Such statement was admitted as both res gestae and as a dying declaration under the predicate laid by the testimony of Mrs. Hal Smith. It was shown that Mrs. Hal Smith heard screaming and heard a shot and ran out of her home up to the scene of the difficulty, and appellant was down on the deceased choking him, and appellant's wife pulled appellant off the deceased, her brother; it took about a minute for the witness to arrive at the scene. The witness further said that when her husband got up off the ground appellant followed him with the gun in his hand, and said, "If you don't stop, I am going to shoot you again," at which time the deceased holloed, "Marty, bring me my thirty-thirty." That she ran back and got the car parked by the side of the house, and her husband walked some little distance and sat by the well washing his face, and she asked him where he was shot, and he said "in the back," and she said, "Where did the bullet come out?" and he said, "It did not come out," and by that time they started to town. That when they got in the car the deceased told her: "I am going to die, get me to a doctor, and let's see what he says, but I know I am going to die." "He said it was not anything but just cold blooded murder. * * * From the time we left the house where the shooting occurred until we got in the doctor's office in Medina it took about ten minutes to get there, probably twenty minutes in all from the time of the shooting, maybe twenty-five, not more than twenty-five." The trial court's qualification shows that this testimony was admitted as res gestae and the latter portion thereof as a dying declaration. It is shown that this witness was actually present at the end of this assault and saw the latter portion thereof, and what she recounted on the stand as to what she saw and heard was surely res gestae or the transaction itself, and took place in the presence of appellant. The portion of her testimony as to what took place in the car on the trip to town was sufficiently near to the time of the transaction to have also been called res gestae; but the statement was also, according to her uncontradicted testimony, given in contemplation of the death that actually followed soon thereafter. True it is that the phrase "he said it was not anything but just cold blooded murder" strongly bears the marks of a conclusion of the declarant, yet same has been often characterized by the courts as a shorthand rendition of the facts. We find an exact counterpart to the present statement in the case of Finley v. State, 92 Tex.Cr.R. 543, 244 S.W. 526, 527, in which the dying declaration contained the following statement: "I do not know the man's name who shot me. He shot me in cold blood. I was trying to prevent trouble between two other men when he shot me." This court held that such a statement was but a shorthand rendition of the facts, and there we find many cases cited justifying such holding. In the Sims' case (Sims v. State), 36 Tex.Cr.R. 154, 156, 36 S.W. 256, this court held admissible a declaration to the effect that "Sims ought not to have shot me," and in Connell v. State, 46 Tex.Cr. R. 259, 261, 81 S.W. 746, 747, a statement to the effect that "He had no cause for doing it," was held admissible. The Bateson case (Bateson v. State), 46 Tex.Cr.R. 34, 80 S.W. 88, to which we are cited, which bears a different construction to the just above cited cases, has been overruled by this court on that point in the Clark case (Clark v. State), 56 Tex.Cr.R. 293, 120 S.W. 179. It is our conclusion that in the first instance the statement thus testified to by Mrs. Hal Smith was res gestae of the transaction, and in support of this proposition we quote from Freeman v. State, 91 Tex.Cr.R. 410, 239 S.W. 969, 971, as follows: "Many authorities hold that when a condition of suffering exists from the infliction of the injury to the making of the statement in a given case it might extend far enough to preclude premeditation and in cases of this kind we have declined to be limited to any specific time. Tooney v. State, 8 Tex. App. [452], 459; Stagner v. State, 9 Tex. App. [440], 441; Fulcher v. State, 28 Tex.App. [465], 471, 13 S.W. 750; Lewis v. State, 29 Tex.App. 201, 15 S.W. 642, 25 Am.St.Rep. 720; Castillo v. State, 31 Tex.Cr.R. 145, 19 S.W. 892, 37 Am.St.Rep. 794; Moore v. State, 31 Tex.Cr.R. [234], 236, 20 S.W. 563; King v. State, 34 Tex. Cr.R. [228], 237, 29 S.W. 1086; Freeman v. State, 40 Tex.Cr.R. 545, 46 S.W. 641, 51 S.W. 230; Chapman v. State, 43 Tex. Cr.R. 328, 65 S.W. 1098, 96 Am.St.Rep. 874. Reference to these cases will disclose that statements made at times varying from 20 minutes to a longer period than an hour and a half were admitted as res gestae under appropriate surroundings."

This holding also disposes of the statement of Frank Smith relative to what he heard his father say while in the car going to Medina City concerning the transaction in which...