Bell v. State

• Decision Date: 31 May 1939
• Docket Number: No. 20415.,20415.
• Citation: 129 S.W.2d 664
• Parties: BELL v. STATE.
• Court: Texas Court of Criminal Appeals

129 S.W.2d 664

BELL v. STATE.

No. 20415.

Court of Criminal Appeals of Texas.

May 31, 1939.

Rehearing Denied June 23, 1939.

Commissioners' Decision.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

Clemmon "Cat" Bell was convicted of murder, and he appeals.

Affirmed.

Pinkston & Pinkston, of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for four years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Willie Oliphant by shooting him with a pistol.

Lillie Bell, a witness for the state, testified that on the night of the homicide she and the deceased started to the home of Hawk; that deceased had called for her at her brother's home where she had moved after leaving the home of the appellant; that on the way to Hawk's house she and deceased were overtaken by appellant, who called upon deceased to stop; that when deceased complied with appellant's request appellant said to deceased, "I thought you were coming after that hog;" that with these words appellant began shooting, firing two or three shots, one of which was fired after the deceased got out of his car on the right hand side; that the defendant then ran around the back of the car and came upon the deceased as he was crawling into the cotton nearby and fired one more shot; that the deceased made no movement to hurt the appellant and said nothing to him. The testimony of the state was to the further effect that deceased died shortly after he had been shot by the appellant. Immediately after the homicide appellant went to his landlord and gave him his pistol. He stated at the time that he had killed deceased and that he intended to kill him.

Testifying in his own behalf, appellant declared that he had entertained no ill-will toward the deceased. He said that deceased had told him that he wanted to buy a hog from him; that he would be by the appellant's home at 7 p. m. to receive the hog; that he waited at the appointed place for deceased but he did not appear; that he later started to the home of Lillie Bell's brother to see if he could find Lillie Bell; that upon overtaking Lillie Bell and deceased he discovered that their car was parked by the road; that he engaged deceased in conversation; that deceased made a movement with his hand toward his hip pocket; that believing his life was in danger he shot deceased. In explaining why he was carrying a pistol, appellant declared that he had borrowed it from his landlord to carry with him on a trip he was preparing to take to West Texas.

Appellant introduced numerous witnesses who testified that his general reputation as a peaceable and law-abiding citizen was good.

Bill of exception No. 1 is concerned with the action of the court in overruling appellant's challenge for cause to venireman Moseley. The bill shows that appellant failed to use a peremptory challenge notwithstanding he had only exercised two challenges at the time the juror was questioned on his voir dire examination. It is not shown by the bill that any objectionable juror was thereafter forced upon the appellant. On the contrary, the court's qualification to the bill is to the effect that appellant was required to take no objectionable juror. Under the circumstances, we are constrained to overrule appellant's contention that error is presented. We quote from 4 Tex.Jur. 579, as follows: "To warrant a reversal it must be shown not only that a sufficient challenge for cause was overruled and that the defendant exhausted his peremptory challenges, but also that one or more objectionable jurors sat in the case. If an objectionable juror was not forced upon the defendant the overruling of a challenge for cause is not reversible error even though the appellant was required to exercise a peremptory challenge in order to excuse the juror * * *." See Shelburne v. State, 111 Tex.Cr.R. 182, 11 S.W.2d 519, and Jackson v. State, 97 Tex.Cr.R. 149, 260 S.W. 199.

Bill of exception No. 2 shows that the state introduced the witness Lillie Bell over appellant's objection that she was his common-law wife. The bill of exception is qualified as follows: "The court retired the jury to hear evidence and...