Beard v. State, 22335.

• Decision Date: 07 April 1943
• Docket Number: No. 22335.,22335.
• Citation: 171 S.W.2d 869
• Parties: BEARD v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W.2d 869

BEARD v. STATE.

No. 22335.

Court of Criminal Appeals of Texas.

April 7, 1943.

Rehearing Denied May 26, 1943.

Second Motion for Rehearing Denied June 9, 1943.

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Appeal from District Court, Fisher County; Owen Thomas, Judge.

Rex Beard was convicted of murder and he appeals.

Affirmed.

C. C. McDonald, of Wichita Falls, for appellant.

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

GRAVES, Judge.

The offense is murder. The punishment assessed is death.

Appellant was indicted by the grand jury of Taylor County for the offense of murder alleged to have been committed in said county on the 12th day of February, 1942. The venue of the case was changed to Fisher County on application of appellant where, on the 4th day of June, appellant was put upon trial, which resulted in his conviction as above stated.

It appears from the record that at the time of the commission of the alleged offense appellant was confined in the Taylor County jail at Abilene by reason of having been convicted in the district court of said county for the offense of robbery with firearms and his punishment was assessed at confinement in the State penitentiary for a term of twenty-five years; that while so legally confined in jail he killed Wade Willis, a deputy sheriff, who was preparing to transfer him to Fort Worth for trial in the Federal Court. When the jailer unlocked the door of the cell in which appellant was confined and opened it, he requested appellant to come out into the hallway, which he did, and when Deputy Sheriff Willis attempted to place handcuffs on him appellant requested to be allowed to unbutton his coat, whereupon he drew a pistol and commanded the officers to "get them up". He then shot Mr. Willis in the chest above the heart, inflicting a fatal wound. Both officers were unarmed. The jailer ran downstairs and summoned the sheriff, who exchanged shots with appellant until appellant fell to the floor. He was immediately removed from jail to a hospital for medical attention. An examination of his person revealed that several bullets had pierced his body, but, notwithstanding such wounds, he recovered.

Appellant did not testify nor offer any defense whatever but, on the contrary, entered a plea of guilty, and by motion timely filed admitted that he had smuggled a pistol into his cell for the purpose of making his escape. The plea of guilty was an admission of his identity, intent, motive and malice. However, the State, in accordance with Art. 502, C.C.P., proved by the jailer, who was an eyewitness to the killing of the deceased, all the facts and circumstances leading up to and surrounding the killing, which showed a previously formed design and intent to escape at all hazards, even though he had to go to the extent of killing some one to attain that objective.

Upon the trial of this cause upon its change of venue, appellant's attorney had filed and presented to the court a motion to instruct the State's attorney not to attempt to introduce in evidence some fifteen judgments of conviction against appellant in other and different counties, all of recent date evidencing appellant's conviction for crime prior to the charge herein inquired about, the punishment for which was pending, the grounds of such motion being that appellant had herein pleaded guilty to the killing of Mr. Willis with his malice aforethought, and that therefore these other and further offenses would be but extraneous crimes not admissible for any purpose, not showing intent, identity, motive or system, nor being res gestae. In such motion the appellant admitted his identity; that he was legally detained in such jail at Abilene; that he procured a pistol to be smuggled into the jail; that his motive and intent was to effect his escape from such legal confinement, and in attempting to do so, with malice aforethought, he killed Mr. Willis.

Appellant's bills of exceptions all relate to the fact that the court admitted testimony relative to such further offenses.

It is appellant's contention that since he had pleaded guilty, that none of such previous convictions were admissible against him, he having admitted all the elements of an offense of murder with malice.

Just here we think it is worthy of note, however, that nowhere in the statement of facts heard before the jury do we find any of the admissions set forth above as to motive, intent or malice, but merely find an ordinary plea of guilty set forth in the trial court's charge.

That the jury are entitled to hear the facts surrounding and constituting an offense we have no doubt. Art. 502, C.C. P., is as follows: "Where a defendant in a case of felony persists in pleading guilty, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereupon."

We think it quite clear that the word "thereupon" means and refers to the punishment to be meted out by the jury. We think the statute contemplates an adequate punishment, one that will offer some punishment in line not only with the crime committed but one that is capable of being carried out. A punishment entirely adequate for one offense might be either inadequate or excessive for a different state of facts surrounding another offense of like character. In order to arrive at such a punishment, would it not be permissible to show the age of appellant as well as the complainant, in many instances, as well as their physical condition, as well as other pending punishments that might be present.

But appellant advances the idea that all the constituent elements of the offense were admitted as being present by him, and therefore he desired the court to direct the State's attorney to not attempt to show pending punishments, which would evidence much more than a lifetime in the penitentiary already assessed against appellant.

It is said in 42 Tex.Jur. p. 78, that: "The right of the State to introduce relative evidence is not restricted by the circumstance that the defendant has entered a plea of guilty, or has admitted the existence of the facts which are sought to be proved."

In Booker v. State, 124 Tex.Cr.R. 562, 63 S.W.2d 1033, 1034, we said: "There is no limit, either by statutory direction or judicial interpretation, upon the kind, character, or amount of relevant testimony which the state may introduce upon a plea of guilty."

In the case of Burns v. State, 127 Tex. Cr.R. 356, 76 S.W.2d 516, appellant admitted that he had shot deceased, and that the wounds caused death; nevertheless the State was allowed to show the such wounds were in the back of the head, had fractured the skull and driven the fractured parts in the brain. In that case we held that although the killing was admitted, nevertheless the State had the right to introduce its relative testimony as to the surrounding facts.

Again, we held in the case of Reeves v. State, 116 Tex.Cr.R. 451, 32 S.W.2d 471, that the nature and character of the wounds on the body of the deceased were admissible and tended to show malice, although there was a prior admission that they had caused the death.

Again, it is said in 18 Tex.Jur. 73, that: "Evidence of the commission of other offenses by the defendant may be given to show a motive for the commission of the crime charged. * * * But evidence of another crime to prove motive is inadmissible where there is no logical connection between the two offenses from which it can be said that one tends to establish the other. * * * Where malice is an element of the offense charged, evidence of similar offenses is admissible for the purpose of establishing that element." These propositions are supported by many cases cited in the footnotes.

But it is appellant's contention that since he had admitted his motive, and admitted his malice, then the trial court should not have allowed these other convictions to have been presented to the jury; and especially is this so in the presence of his plea of guilty before them.

In the case of Vines v. State, 67 Tex.Cr. R. 355, 148 S.W. 727, 729, the accused took the stand and testified to facts showing that he killed the deceased; that he was on his way to Dallas to surrender; that he had been shot by an officer at Wills Point and in Bowie County; that he was dozing in a car when a light flashed in his face, and he awoke and fired a shot that killed the officer. The State showed that the accused was indicted in Dallas County, and had escaped; that he had disarmed an officer at Wills Point; that he had shot at another officer there, and had another difficulty with an officer in Bowie County. In that case this court held: "Thus, in this case it was permissible to show that appellant was charged with crime in Dallas county, had escaped, resisted arrest in Van Zandt and Bowie counties, and the other circumstances introduced, for they all shed light on the actions of appellant at the time of this killing, and tending to show his motive in slaying deceased—to take life rather than suffer detection and arrest."

Again, in the case of Welk v. State, 99 Tex.Cr.R. 235, 265 S.W. 914, 915, in a state of facts strikingly similar to the present case, wherein a prisoner killed the jailer in an effort to escape, it was held: "In the development of its case, the state showed that at the time of the commission of this offense appellant was confined in the county jail on a charge of murder, to which testimony objection was made on the ground that this was proof of an extraneous crime, was hearsay, and prejudicial to appellant. The evidence was admitted to show motive. It seems reasonable. One casually in jail would not likely kill his jailer in an effort to get out. One charged with a misdemeanor would hardly go to the lengths to effect escape as might one confined on a felony charge; and this would seem especially true if the felony be of the grave character of murder. It is held by this court...