Bell v. State

• Decision Date: 27 December 1916
• Docket Number: (No. 4319.)
• Citation: 190 S.W. 732
• Parties: BELL et al. v. STATE.
• Court: Texas Court of Criminal Appeals

190 S.W. 732

BELL et al. v. STATE.

(No. 4319.)

Court of Criminal Appeals of Texas.

December 27, 1916.

Appeal from District Court, Houston County; John S. Prince, Judge.

John F. and Jim Bell were convicted of murder, and they appeal. Affirmed.

C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellants were convicted of murder, and their punishment assessed at life imprisonment.

J. T. Dawes was the man whom they are alleged to have killed by shooting with a pistol and striking him with a stick and file. The undisputed testimony by many witnesses shows that the body of deceased was most brutally and horribly shot up, and beaten up from the crown of his head nearly to the soles of his feet, at least to the tops of his shoes. The state's testimony, which was ample, and evidently believed by the jury and lower court, by an eyewitness and through corroborating testimony, showed that appellant John F. Bell held deceased while Jim Bell shot him three times after he had beaten him up. The testimony of defendants — both testified — raised the issue of self-defense. The state's testimony disputed this and was amply sufficient to show that the killing was not in self-defense. The issue was fully presented in the court's charge, to which there was no complaint. It was proper also for the court to charge the law of principals as to John F. Bell, which he did. There was some testimony tending to impeach the testimony of some of the material witnesses on both sides, but all this was a matter for the jury, and proper charges were given on the subject. It is unnecessary to detail the testimony. All issues raised can be passed upon without that.

One of the state's main witnesses was the son of deceased, who was an eyewitness to the beating and killing. He was some two or three months over seven years of age. The appellants objected to his testifying, claiming that he was incompetent. The trial judge, after an examination of him, held he was competent, stating that he regarded him as having more than ordinary intelligence for his age, and refers to his entire testimony as bearing on his competency. The court has all the time held under the statute (Vernon's Ann. Code Cr. Proc. 1916, art. 788, subdiv. 2) that the competency of a witness of tender years is determinable by an examination by the trial judge, and the action of the trial court thereon will not be revised on appeal in the absence of a showing that its discretion holding the witness competent was abused, and unless abuse of such discretion is apparent. This proposition is plainly laid down and a great many decisions of this court cited by both Judge White in his An. C. C. P. § 951 et seq., and 2 Branch's An. P. C. § 1771. Under the authorities, we think it is clear the trial judge did not abuse his discretion, and we would not be authorized to so hold, and we hold that the witness was competent.

It has all the time been held by this court that subdivision 3, art. 717, Vernon's Ann. Code Cr. Proc. 1916, to the effect that the prosecuting attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved before introducing his testimony, is directory and not mandatory, and that no error is shown when the trial court does not require the prosecuting officer to make such statement, unless injury because thereof is shown. In this case we think no injury is shown because the prosecuting officer did not make such statement, and hence no...