Bell v. State

• Citation: 196 S.W.2d 923
• Decision Date: 23 October 1946
• Docket Number: No. 23429.,23429.
• Parties: BELL v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 923

196 S.W.2d 923

BELL v. STATE.

No. 23429.

Court of Criminal Appeals of Texas.

October 23, 1946.

Appeal from District Court, Bell County; Wesley Dice, Judge.

Oscar Bell was convicted for murder without malice, and he appeals.

Reversed and remanded.

Taylor & Taylor, of Temple, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Appellant was charged with the murder of his wife, Fern Bell, "by striking her with his fists." He was found guilty of murder without malice and his punishment assessed at five years in the penitentiary.

Appellant urges that the judgment should be reversed, (a) because the allegation in the indictment that he killed deceased by striking her with his fist is not sustained by the evidence; (b) that the State has failed to establish the corpus delicti, in that it has not shown that the death of deceased was caused by any criminal act or agency of appellant.

Each proposition calls for a review of the evidence. It is not practical to set out all the testimony, and only so much of it will be stated as bears upon the propositions indicated above.

The offense, if any, is alleged to have occurred on Sunday, December 2, 1945. Appellant and his wife lived in Temple, Texas, with their three children, Jack Allen Bell (a boy 17 years old), Jo Ann Bell (a girl 13 years old), and a younger son, Oscar Bell, Jr. On that morning Mrs. Bell was not feeling well and did not go to church. She prepared dinner for the family, all of whom were present and ate dinner. Jack Allen Bell left shortly after noon and returned about 3:30 o'clock p. m. His mother was preparing supper. Jack Allen noticed a bump on his mother's head. He asked her how she got the bump and she replied, "Daddy caused it." At this time appellant was in an adjoining room lying on the bed. In a few minutes he came into the room where his wife and Jack Allen were and appellant said to his wife, "That is a pretty bad place (referring to the bump on her head) and asked her not to go to church" that night. Jack Allen further testified, "That is all that was said by my father. As to whether Daddy said how that was put on her head he didn't say a word— they didn't discuss it at all. At the time the injury to her mother occurred Jo Ann was the only State's witness who was at home. She testified: "* * * my father and mother were in the kitchen. At that time I did not see my father do anything to my mother. I did not at any time hear my mother scream or complain until later in the afternoon. I did not have occasion to go to my father for any reason or remonstrate with him. As to whether I saw any bruises on her, it was when I went into the kitchen to get the aspirins for daddy to give them to Mother—that was in the afternoon; I don't recall what time it was. At that time I did not see my father strike my mother, or kick her. I did not at any time see my mother go to the bath room. * * * I did not at any time see my father mistreat or abuse my mother; I didn't see him strike or hit her at any time. My father was in a good humor on that day and my mother was too. * * *. I first saw this bruise when I went in to get the aspirin; my daddy was in the kitchen; he was looking for the aspirin and he called me and I found it; my mother was sitting by the window; she wasn't doing anything. I noticed a bruise on her head at that time; she wasn't holding her head, she was just sitting; she was conscious. My father then gave the aspirin to her and a glass of water; he gave her three. He didn't do anything else at the present time."

Later in the afternoon Mrs. Bell became seriously ill, complained of her...