Bailey v. State
| Decision Date | 27 February 1963 |
| Docket Number | No. 35378,35378 |
| Citation | 365 S.W.2d 170 |
| Parties | Jean Porter BAILEY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Irwin & Irwin, T. K. Irwin, Jr., George W. Irwin and R. T. Scales, Dallas, for appellant.
Henry Wade, Dist. Atty., Dallas, George Milner, Bill Watts, James Miller, Steve Guittard and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for murder with malice; the punishment, six years' confinement in the penitentiary.
In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that it was undisputed that appellant killed the deceased by shooting him with a pistol.
Appellant and the deceased were husband and wife, but on the day of the killing were separated and not living together. The homicide occurred on an occasion when the decreased returned to the home and engaged appellant in a conversation relative to his taking custody of their fourteen-year-old son. Appellant was the only surviving eyewitness to the killing. When Officer Duncan arrived upon the scene shortly after the shooting, appellant was still at the home and the deceased was found lying on the floor in the kitchen, with four bullet holes in his body.
Appellant's defense at the trial was that of self-defense, which became a sharply contested issue in the case.
It was the state's theory, which was supported by the testimony of Dr. P. O. B. Montgomery, Jr., who performed an autopsy upon deceased's body, that the first shot fired by appellant struck the deceased in the back.
Testifying as a witness in her own behalf, appellant admitted shooting the deceased but contended that she was acting in her own necessary self-defense. She testified to previous threats and acts of violence committed upon her by the deceased and stated that when she shot the deceased he was coming toward her in a rage and that she was in fear of death or serious bodily injury. She further stated that the first shot was fired when the deceased was looking toward her and that it struck him in front.
While Officer Duncan was testifying on direct examination, state's counsel exhibited to him a certain instrument marked for identification as state's exhibit #1, which the officer testified was a photograph of the person (deceased) whom he saw lying on the kitchen floor when he arrived upon the scene of the killing. The exhibit was not introduced in evidence and after counsel had concluded his direct examination of the officer, counsel for appellant requested the court that they be allowed to see the photograph for the purpose of identification and further cross-examination of the witness. Such request was by the court refused.
In refusing appellant's request, the court clearly fell into error. When the exhibit was used by state's counsel before the jury in questioning the officer, its contents became an issue in the case. Under the decisions of this court it is held to be reversible error to deny the demand of an accused for the production of any statement or document which had been used in some way before the jury by which its contents became an issue--such as being used by a witness to refresh his memory, or exhibited, read from, or used to question the witness in the jury's presence. Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920, 22 L.R.A.,N.S., 706; Kirkland v. State, 86 Tex.Cr.R. 595, 218 S.W. 367; Board v. State, 122 Tex.Cr.R. 487, 56 S.W.2d 464; Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97; Palacio v. State, 164 Tex.Cr.R. 460, 301 S.W.2d 166; and Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467.
We are unable to agree with the state that because Officer Duncan did not use the exhibit to refresh his memory but only identified it appellant was not entitled to see and examine the same. As heretofore stated, when the photograph was exhibited to the officer before the jury and he was questioned relative thereto, its contents became an issue and appellant then...
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