Bowles v. State, 30374

• Decision Date: 11 March 1959
• Docket Number: No. 30374,30374
• Citation: 168 Tex.Crim. 241,324 S.W.2d 841
• Parties: Bryant William BOWLES, Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 841

324 S.W.2d 841

168 Tex.Crim. 241

Bryant William BOWLES, Jr., Appellant, v. STATE of Texas, Appellee.

No. 30374.

Court of Criminal Appeals of Texas.

March 11, 1959.

Rehearing Denied May 20, 1959.

Baldwin & Goodwin, by Joe B. Goodwin, Beaumont, Votaw & Wharton, by E. B. Votaw, Vidor, for appellant.

Robert S. Coe, Dist. Atty., Kountze, Earl Stover, County Attorney, Silsbee, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for murder; the punishment, life.

The testimony of the state shows and the appellant while testifying in his own behalf admitted that he shot the deceased in the left side of the neck with a shotgun causing his death. However, appellant testified that he shot in self-defense.

The court charged the jury on the law applicable to self-defense both as to real and apparent danger.

The jury resolved the issue of fact against the appellant and the evidence is sufficient to support their verdict.

By Formal Bill of Exception No. One, appellant contends that the trial judge committed reversible error when in the presence of the jury during the taking of testimony, he used the microphone which was connected with loud speakers in the courtroom and said:

'Just a minute counsel. The sheriff tells me that we have had a killing over at Honey Island and several people have been injured and one killed and they need the District Attorney very bad for about ten minutes.'

At the time of the remarks appellant made no objection but moved for a mistrial on the grounds that the judge's remarks were so prejudicial that they could not be cured.

It is further certified in the bill:

'And be it further remembered that after the court refused to declare a mistrial for the remarks made by the court, that the counsel for the defendant excepted to the failure to (sic) the Court to declare a mistrial and said remarks were so manifestly improper that their effect could not be withdrawn from the jury * * *'.

The court qualified the bill to show that he had been misinformed when he made the remarks complained of and it was only developed after the case was concluded that no one had been injured although one person had been killed; that when the jury returned to the courtroom, he, on his own motion, instructed the jury not to consider during their deliberations the remarks of the occurrence happening in the county; and that the jury were not informed any further concerning the occurrence contained in the remarks after they had been made.

The occurrence related in the remarks of the judge did not directly or indirectly refer to the case on trial or to any person connected with it except the sheriff and the district attorney whose duty it was to look after such matters. The locale of Honey Island referred to in the remarks is not shown to be the scene of the crime here charged or to have any connection with the accused, the deceased or any witness. The remarks were totally disconnected with the facts and circumstances of the case and could not be given any application that would be reasonably calculated to prejudice the rights of the appellant. The isolated remarks neither pointed to nor furnished anything which would reasonably cause the jury to be influenced against the appellant.

In Cole v. State, 157 Tex.Cr.R. 469, 250 S.W.2d 201, 206, the daughter of a member of a jury in a murder case was, under orders of the trial judge, brought to the jury room, where she informed her father at the door, and in the presence and hearing of the other members of the jury, that she had been attacked by a trusty at the jail, and had been examined by a doctor who said that she was all right. We said:

'A fairly safe rule would be to say that, if the matter brought to the juror's attention while serving on the jury bore such similarity to the case on trial that it would reasonably be expected to influence him against the accused, then the verdict of such a jury cannot be allowed to stand. An excellent illustration of what can occur that will cause injury to the accused is found in Means v. State, 100 Tex.Cr.R. 1, 271 S.W. 613. There, the case involved was that of a Negro charged with killing a white man. While the case was in progress, the sheriff and his deputy went out to arrest a colored man for bootlegging. The suspect resisted arrest, killed the deputy sheriff, wounded the sheriff and was killed himself. After the jury had retired to consider their verdict, the bodies of the deputy sheriff and the colored man were brought and spread on the court-house lawn just outside the jury room. A large crowd assembled and, within the hearing of the jury, loudly condemned Negroes generally for killing white men. There, we concluded that the incident was necessarily hurtful in the case of the accused then on trial. Since there was no similarity between the case on trial and the matter brought to the juror's attention, we conclude that the trial judge was warranted in finding that they were not so influenced.'

Although the court certified in the bill that such remarks were so manifestly improper that their effect could not be withdrawn from the jury, yet, all the facts surrounding the matter complained of are before this court and it appears that they do not warrant the conclusion that reversible error is shown.

Bill of Exception No. Two recites that Wyatt Baldwin, of defense counsel, had quoted a verse from the Bible in his argument to the jury, and the district attorney, in closing, said in part as follows:

'We are thankful in this great country that we are a Christian Country only because in that book that he tells you about (speaking of defense counsel) and I hate to be called on and tell a defense lawyer [Baldwin] that they don't live by the Bible quoted.'

The court made no ruling on appellant's objection that such argument was manifestly improper and outside the record, but did respond to his request to instruct the jury not to consider it for any purpose and then overruled his motion for a mistrial.

In the absence of a showing of the contents of the verse quoted by counsel, the charge that he didn't live by the 'Bible quoted' cannot be construed as prejudicial. It is a common belief that only One is perfect. This, in connection with the court's instruction to the jury not to consider such argument, fails to show error. The conclusion of the trial court under the record is not binding upon this court.

In Bill of Exception No. Four, appellant complains of the following closing argument to the jury by the district attorney:

'* * * It's not the District Attorney, but the facts in the case which scares these lawyers. It's the facts they don't want to talk about because Wyatt Baldwin has got more legal knowledge in his little finger than I will obtain in my lifetime.

'And as he apoligized for his conduct, and that's for his defendant, Bryant William Bowles, Jr., is the picnic that he's been having in this courtroom throughout the trial in passing water to the Jurors, which the court had instructed him not to do, passing cigars and jumping up, and he's on a picnic. I tell you, Bryant Bowles, and to you it was disgusting.

'As to you [Baldwin--of defense counsel], it was a disgrace to the law profession as we practice it and know it in the State of Texas.'

over his objection that it was manifestly improper.

Here again, appellant's exception above the court's signature on the bill precludes the consideration of the court's qualification.

The statement of facts approved by both the attorney for the state and the appellant and also the trial judge shows that during the taking of the testimony in the presence of the jury the following occurred:

'The Court: What's going on?

* * *

* * *

'The Court: Is there something the matter involving the case.

'Mr. Baldwin: No, No, Your Honor, nothing about the facts in the case.

'The Court: You know the serious consequences of flirting with the Jury.

'Mr. Baldwin: Yes, sir.

'The Court: You're experienced enough to know.

'Mr. Baldwin: Well, I beg the Court's pardon, and the Jury's pardon.

'The Court: Don't say anything else to the Jury----

'Mr. Baldwin: I didn't say anything about----

'The Court: whether it's about the case or not.

'Mr. Baldwin: I shouldn't have said anything; you're correct.

'The Court: All right. Have a seat now and conduct yourself as you know how.

* * *

* * *

'The Court: Just a minute, please. Will you gentlemen kindly step back at least one foot from the rail behind the jury box. Please stay back there. Don't lean up on the rail. This Jury has got to be kept strictly away from any outside influence at all.

'Mr. Baldwin: Your Honor, I did say something about the time to this juror, not anything about the case, and I shouldn't have said that. I got some ice there. I want to beg the Court's pardon and the Jury's pardon for saying that. I shouldn't have done it.

'The Court: I accept your apologies. Everything will be all right. Just don't let it happen again.

'Mr. Baldwin: All right.'

It is apparent that the district attorney's remarks related to the occurrences during the taking of testimony as set out above in the presence of the jury, for which counsel apologized to the court and jury. These matters furnished sufficient basis for the argument, therefore no error is shown.

Error is urged in the admission of that portion of appellant's testimony given on his habeas corpus hearing to obtain bail wherein he testified that he had borrowed $800 from the deceased and owed him $59 of the loan at the time he killed him, over his objection that it was an attempt to impeach him by showing such loan when there was no issue that money had any bearing on the killing.

Appellant testifying in his own behalf on the main trial stated that he had borrowed $800 from the deceased and still owed him $59 at the time of his death.

The testimony showing the relationship existing previously and at the time of the...