Blake v. State

• Decision Date: 18 April 1928
• Docket Number: (No. 11408.)
• Citation: 7 S.W.2d 579
• Parties: BLAKE v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 579

BLAKE v. STATE.

(No. 11408.)

Court of Criminal Appeals of Texas.

April 18, 1928.

Rehearing Denied June 23, 1928.

Appeal from District Court, Swisher County; Charles Clements, Judge.

Robert F. Blake was convicted of murder, and he appeals. Affirmed.

A. M. Mood, of Amarillo, for appellant.

Meade F. Griffin, Dist. Atty., of Plainview, D. H. Culton and Dennis Zimmermann, both of Tulia, and A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at death.

The circumstantial evidence and the direct evidence, consisting of the admission and confession of the appellant, are quite sufficient to support the jury's finding that the appellant shot and killed the deceased and robbed him. His principle defense was insanity due to the excessive use of narcotics.

Bill of exceptions No. 1 relates to the action of the court in declining to continue the preliminary hearing upon the issue of present insanity. Upon that hearing, which took place on the 25th of May, the jury found the appellant to be sane. From that proceeding no appeal lies to this court, and for that reason a discussion of the motion mentioned is not deemed necessary. See Darnell v. State, 24 Tex. App. 6, 5 S. W. 522; Millikin v. Jeffrey, 108 Tex. Cr. R. 84, 299 S. W. 435; Ex parte Millikin, 108 Tex. Cr. R. 121, 299 S. W. 433. On the call of the case for trial, appellant again presented the same motion for a continuance. All these matters are embraced in bill of exceptions No. 1, and the complaint is that, in refusing to postpone the hearing of the motion upon the preliminary inquiry of insanity and in refusing to continue the case upon the main trial because of the absence of Bill Buckland and Dr. Walcott, both of whom resided at Amarillo, there was error committed. In the motion it is averred that they were temporarily absent from the state; that the witness Buckland, about a week before the insanity trial, while in the office of the appellant's attorney in Amarillo, Potter county, Tex., promised to be present; that a like conversation was had with the witness Dr. Walcott, who also resided at a certain address in Amarillo. A subpœna appears to have been issued for Buckland on the 20th of May, which was returned not executed upon the same day. On the 19th of May, a subpœna was issued for Dr. Walcott and returned not executed as to him on the 20th of May. The testimony expected from the witness Buckland was that the appellant was in California in the summer of 1925 and up to near the middle of July, and further that the appellant was a morphine addict. By the doctor mentioned, the proof expected was that he was acquainted with the appellant and his family, and that the appellant was a victim of morphinism or morphinomania, and that such habits have frequently caused insanity. Amarillo is the county seat of Potter county, which is about 55 miles distant from the place at which the appellant was tried.

If, after the subpœnas were returned not executed on May 20th, there were efforts made to ascertain the whereabouts of the witnesses who had been temporarily absent from their homes, we have failed to perceive it from the record. The insanity trial was had on the 25th of May, the main trial began on the 27th of that month, and the charge was given to the jury on the 31st. Attachments were requested at the time the main trial began, but as to the disposition of the attachments the record appears to be silent. Under the statute (article 543, C. C. P. 1925), diligence is essential. Taking account of the fact that in a case where the defense is insanity the law tolerates some relaxation of the rule touching diligence, the showing in the present instance is not deemed sufficient to show that in overruling the motion the learned trial judge abused his discretion. Some recent cases are Toussaint v. State, 92 Tex. Cr. R. 374, 244 S. W. 514; Hill v. State, 98 Tex. Cr. R. 227, 265 S. W. 567; Hornsby v. State, 91 Tex. Cr. R. 166, 237 S. W. 940; Laughlin v. State, 97 Tex. Cr. R. 372, 260 S. W. 865; Weaver v. State, 98 Tex. Cr. R. 476, 266 S. W. 408; Boxley v. State, 100 Tex. Cr. R. 338, 273 S. W. 589; Bernson v. State, 106 Tex. Cr. R. 648, 294 S. W. 217; Huffman v. State, 107 Tex. Cr. R. 190, 296 S. W. 313; Rice v. State, 107 Tex. Cr. R. 284, 296 S. W. 518; and other cases collated in Vernon's Ann. Tex. C. C. P. 1925, vol. 1, p. 435. We will add that the testimony of Buckland touching the absence of the appellant, in view of the record showing that he was not absent at the time of the homicide, is not of prime importance. Buckland's testimony, as well as that of the absent witness, Dr. Walcott, so far as it went to show that the appellant was a narcotic addict, was cumulative upon an issue which was not seriously controverted. From the explanation of the appellant's bill of exceptions, it appears that on the insanity trial it was admitted that the appellant was a narcotic addict. On the main trial, in the confession of the appellant introduced by the state, the appellant said:

"I was a narcotic addict at this time, and had been for almost a year. I was almost broke, and the last dose of drugs was going. I had begun to feel the effects wear off, and I got sick, as a narcotic addict terms it, when the craving comes on him and he has nothing to satisfy it with. I was crazed for the want of dope, and, not being overladened with it, leaving Plainview, I began to formulate a fanatical scheme to rob this man that I was riding with before we got to our destination, which was Tulia, Tex. I put it out of my mind and thought that I would endure the suffering and the want until I could get to Amarillo, Tex. I then changed my mind and decided to have immediate relief. I asked Mr. Conner to stop the car. He stopped the car. I then told him to throw up his hands, and he laughed and asked me what I thought I was doing. Then I pressed a gun to his ribs and said that `I want your money, and I want it.' He started to struggle with me, and I did it. He still struggled with me, and, not knowing that I had already shot him once, I shot him again."

Several witnesses testified in behalf of the appellant that he was a morphine addict, and this seems not to have been controverted by the state. He also introduced expert witnesses touching the effect upon his mind of the habitual use of morphine and also nonexpert witnesses touching his mental condition. In his charge to the jury, the court embraced the following language:

"You are further instructed that, when the admissions or confessions of a defendant are introduced in evidence by the state, and such admissions or confessions contain exculpatory or mitigating statements, then the whole of the admissions or confessions are to be taken together, and the state is bound by them, unless they are shown to be untrue by the evidence in this case."

The state of the record is not deemed such as would justify this court, aside from the question of diligence, in declaring that, in overruling the application for a continuance and the motion for new trial based thereon, an abuse of discretion was exhibited.

Complaint is made to the refusal of the court to quash the special venire writ, also to quash the service of the writ and return, and to extend the time for examination of the venire writ and return. It seems that a venire of 250 men was ordered. The return showed the executed writ by personal service upon all named in the writ except 6. Of these, the sheriff stated that 5 were out of the county and one was not found. By a general averment, the sufficiency of the diligence exhibited by the sheriff's return was attacked. No evidence was introduced by the appellant controverting the truth of the reasons given in the return for the failure to summon the veniremen who were not served. The sheriff was called by the state and gave further detail supporting his diligence. The return, on its face, is deemed quite sufficient, and was not in need of amendment. See article 598, C. C. P. 1925; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322; Furlow v. State, 41 Tex. Cr. R. 12, 51 S. W. 938; Lewis v. State, 15 Tex. App. 647; White's Ann. Tex. C. C. P. p. 451, § 713. The bill is quite voluminous and somewhat confusing. If we understand its purport and the attending facts, the court, some time before the trial, made an order directing that a special venire of 250 men be summoned. He noted in the order that there were but 72 names on the list of special veniremen furnished by the jury commissioners in compliance with articles 593 and 594, C. C. P. 1925. The court directed, therefore, that the 72 persons last mentioned be summoned and also 178 additional jurors. The special venire writ followed this order in substance naming the 72 who had been selected by the commissioners, and directing the sheriff to summon them and 178 additional. In many subdivisions of the motion, the writ is attacked upon various grounds growing out of this procedure. We perceive no valid ground for complaint, but think there was substantial compliance with the statute. The veniremen named by the commissioners being insufficient in number, the court, under article 595, C. C. P. 1925, was duly authorized to order the sheriff to summon an additional number. In the article mentioned, it is stated, in substance, that, if the commissioners have not designated any or not a sufficient number to make the number required by the special venire, the court shall order the sheriff to summon a sufficient number to complete the venire. The action of the court in the present instance seems to be a literal compliance with the statute.

If we comprehend the record, the court, after hearing testimony to the effect that the sheriff's return had been duly filed and the indorsement of the file mark omitted by inadvertence, ordered the clerk to place his file mark on the return, and that, after the entry, the appellant made a motion to...