Ballew v. State

• Decision Date: 06 February 1924
• Docket Number: (No. 8243.)
• Citation: 260 S.W. 1045
• Parties: BALLEW v. STATE.
• Court: Texas Court of Criminal Appeals

260 S.W. 1045

BALLEW v. STATE.

(No. 8243.)

Court of Criminal Appeals of Texas.

February 6, 1924.

Rehearing Denied April 30, 1924.

Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.

Jim Ballew is convicted of murder, and he appeals. Affirmed.

T. H. Postell, of Center, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

Appellant is condemned to confinement in the penitentiary for a period of 99 years for the murder of T. H. Musselman.

Pearl Musselman, who was indicted for the same offense, gave, on behalf of the state, direct testimony that the appellant shot and killed the deceased. Details were given. She and the deceased had been married a short time. At the time of their marriage the deceased applied for and afterwards obtained insurance upon his life for her benefit in the sum of $5,000. Appellant was present at the time of the making of the application and by his declarations to others than the accomplice manifested much interest in the policy, and learned of its issuance. According to the testimony of the accomplice, appellant made love to her after her marriage, told her he was going to kill the deceased, intercepted letters from the deceased to her, wrote anonymous letters to the deceased to cause his return from Richmond, where he had gone, went to the home of the deceased at nighttime, and borrowed a shotgun belonging to the deceased, and arranged and gave a signal, upon which the accomplice brought the deceased out of his house into the yard. Appellant then suggested that they go to a neighbor's house where he claimed a party was in progress. The three walked some distance, and appellant finally shot the deceased in the back of the head with a shotgun. After talking to the accomplice and threatening her in an effort to prevent the disclosure, he fled. Before doing so, however, he took a watch from the person of the deceased. The accomplice brought the gun and shells which had been in possession of the appellant to her home. Upon her entry she declared in the presence of her mother and sister that appellant had killed the deceased. According to the testimony introduced, upon examination of the gun it was found that one barrel had been fired. The body of the deceased was found at the point described by her. The wound on the head and the wadding from the shell were such as were made by the weapon described by the accomplice. The watch of the deceased was traded by the appellant to another. The state's evidence was such as to justify the jury in the conclusion that the watch of the deceased, which was traded by appellant to a witness after the homicide and before his arrest, was the same as that introduced in evidence and identified. Certain letters which, according to the accomplice, were written by the appellant or by her at his instance were introduced in evidence. Her statements that he had opened her mail and had intercepted her letters to her husband were corroborated to a certain degree in that persons in charge of the mail testified that appellant had called for her mail and had also called for letters mailed by her. Circumstantially, it was shown that appellant and the accomplice had written a letter at the time and place designated by her which coincided with the time and place and character of stationery that the letter introduced in evidence was written.

Misconduct of the jury in discussing the failure of the accused to testify was made a ground to the motion for new trial. Oral evidence was heard. Taylor, the foreman of the jury, testified that upon their retirement he was immediately selected as foreman, and that he requested those of the jurors who deemed the appellant guilty to indicate it by standing; that they all stood; that they were then requested to indicate in the same manner whether they were for the death penalty or otherwise. Seven stood and five remained seated. These five indicated that they favored a penalty of 99 years' confinement in the penitentiary. A further discussion was deferred until the morning, when the verdict was reached. Any discussion or reference to the failure of the appellant to testify, so far as Taylor was aware, was not mentioned or considered. He denied having made any statement to the attorney for the appellant to the contrary.

Juror Pinkston testified that the matter of appellant's failure to testify was not discussed by the jury nor considered by them. He corroborated Taylor with reference to the method of reaching the verdict. He admitted on cross-examination that he heard some one say that he did not understand why the accused did not take the stand if he was not guilty. That was after the jurors had agreed upon the guilt, but before those who were for the death penalty had agreed to imprisonment. Ramsay, another juror, said that he heard such a remark made, but, according to his judgment, it was after the verdict had been agreed upon. One of the counsel for the appellant testified to conversations with the jurors mentioned in which, according to his testimony, they made statements somewhat at variance with their testimony upon this hearing.

The truth of the averments in the motion for new trial being controverted, and the persons who signed the affidavits attached to the motion supporting the averments of misconduct of the jury having been introduced, and their oral testimony heard by the court, there was no error in the court relying upon the oral testimony in passing upon the motion for new trial. The statute (article 841, C. C. P.) vests in the trial judge the authority to hear evidence touching such averments by affidavit or otherwise. If the affidavits were considered they but tend to impeach the jurors who testified by contradictory, statements out of court. The state having elected to controvert the motion, the burden was upon the appellant to sustain it by evidence. At best the evidence is conflicting, and it was within the province of the trial court to decide the issue of fact. There being evidence supporting the court's finding that there was no misconduct requiring a new trial, his conclusion is binding upon this court. Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Vernon's Tex. Crim. Stat. vol. 2, p. 793, and cases cited.

The mention of the appellant's failure to testify, made as in this case, after the jury had reached the conclusion that the accused was guilty, and had determined that his punishment should be death or imprisonment for 99 years, in view of the verdict, would not...