Brooks v. State

• Decision Date: 05 February 1936
• Docket Number: No. 18169.,18169.
• Citation: 93 S.W.2d 447
• Parties: BROOKS v. STATE.
• Court: Texas Court of Criminal Appeals

93 S.W.2d 447

BROOKS v. STATE.

No. 18169.

Court of Criminal Appeals of Texas.

February 5, 1936.

Rehearing Denied February 26, 1936.

On the Merits April 1, 1936.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

Nell Brooks was convicted of murder, and she appeals.

Reversed and remanded.

Heidingsfelder & Wander, Charles Murphy, and H. G. Hart, all of Houston (Sam W. Davis, of Houston, and A. H. Spann, of Navasota, of counsel), for appellant.

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

CHRISTIAN, Judge.

The offense is murder; the punishment, death.

This cause has not been submitted on the merits. Prior to such submission appellant submits an application for certiorari in which she requests this court to issue an order directing the district clerk of Harris county to incorporate in the record certain bills of exception which the court below refused to approve. Further it is requested that said clerk be directed to forward to this court a copy of the court reporter's notes in question and answer form.

The application for certiorari is not accompanied by certified copies of the bills of exception sought to be now inserted in the record. In Savage v. State, 100 Tex. Cr.R. 361, 272 S.W. 193, appears the statement that the application must be accompanied by such copies in order that this court may know whether it is necessary or of avail that the record be corrected. See, also, Luman v. State (Tex.Cr.App.) 20 S.W.(2d) 1064; Metcalf v. State, 115 Tex. Cr.R. 382, 27 S.W.(2d) 807; McElreath v. State, 122 Tex.Cr.R. 556, 56 S.W.(2d) 462.

We find in the record a narrative statement of facts duly approved by the trial judge. It appears that the copy of the court reporter's notes to which we have referred was not approved by the trial judge. Under the circumstances, it would avail appellant nothing to have same before this court.

The application for certiorari is denied.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Rehearing on Application for Certiorari.

LATTIMORE, Judge.

Appellant moves for a rehearing of our denial of her application for certiorari herein, and attaches to her motion duly certified copies of the four bills of exception which she asserts were wrongfully denied a place in this record on appeal. We find upon examination of the transcript herein that the learned trial judge of the court below, upon his refusal of appellant's said bills of exception, duly made and filed in lieu thereof his own bills; each of said bills so filed in lieu of the refused bills being shown by the recitals in the court's bills to be upon the same matter. This is in accord with the provisions of article 2237, Revised Civil Statutes 1925.

It would become the duty of appellant in such case, if not satisfied with the court's bills so prepared and filed by him, to resort to bystanders' bills, as is provided in said article, in order to have the matter complained of reviewed by this court. It being thus apparent that appellant is not entitled to her writ of certiorari, the motion for rehearing is overruled.

On the Merits.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder, and her punishment was assessed at death.

The indictment in this case is in three counts. The first count charges that Nell Brooks on or about the 25th day of May, A. D. 1934, in the county of Harris and state of Texas, did with malice aforethought voluntarily kill Will Brooks by shooting him with a pistol. The second count charges that Levi Johnson on or about the said date in the county of Harris and state of Texas did with malice aforethought voluntarily kill Will Brooks by shooting him with a pistol. The third count charges that Nell Brooks, on or about said date and in said county and state prior to the commission of said offense by said Levi Johnson as aforesaid, advised, commanded, and encouraged said Levi Johnson to commit said offense; the said Nell Brooks not being present at commission of said offense by the said Levi Johnson.

The testimony adduced by the state shows that Nell Brooks, the appellant, who was the wife of the deceased, had prior to the commission of said offense threatened to place him, said Will Brooks, "on the spot" and have him killed; that she offered to pay Levi Johnson the sum of $500 to kill said Will Brooks; that on the 25th day of May Levi Johnson and Jesse Morgan went to the Brooks' home, entered and took a position in a hall near the living room, and, when the deceased entered the front door, in response to a summons from the appellant that some one wanted to talk to him over the telephone, said Levi Johnson shot him, the said Will Brooks, three times, from the effects of which he died instantly; that on said night after the killing Ethel Phillips delivered to Levi Johnson $200 in bills, of which said amount Levi Johnson on the next day spent $135 to purchase a second-hand automobile.

The state, for the purpose of establishing a motive on the part of the appellant for the commission of the offense, offered testimony to the effect that the deceased carried one or two life insurance policies in which appellant was named as the beneficiary and that she collected the same. Appellant testified in her own behalf denying that she had threatened to have her husband killed, or that she employed Levi Johnson to do so, or that she agreed to pay said Levi Johnson or any one else any sum of money whatever. She also denied that she delivered to Ethel Phillips any money to be delivered by her to Levi Johnson. The testimony of the state as well as that of the appellant shows that at the time of the shooting of the deceased the appellant, the mother of deceased, and some other women were in front of a restaurant located near the home of appellant and her deceased husband; that while at the restaurant she (the appellant) heard the telephone ring at her home and sent a party to summon the deceased to answer the said telephone; that, as he (deceased) entered his home in response to said summons, he was shot and killed.

There are thirty-three bills of exception in this record. We will not undertake to discuss all of them, for the reason that many of them are without merit, and most of them are so qualified by the trial court as not to show any reversible error.

By bill of exception No. 3 appellant complains of the testimony of Flora Hill, mother of deceased, to the effect that the defendant, under threats of burying the deceased in a plain box, extorted from the witness a contribution of $221 toward the funeral expenses of deceased; the objection thereto being that it was immaterial and...