Brown v. State, 36517

Decision Date12 February 1964
Docket NumberNo. 36517,36517
PartiesMamie Jane BROWN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

M. Gabriel Nahas, Jr., King C. Haynie, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was tried upon an indictment for murder with malice aforethought and convicted of negligent homicide in the second degree, with punishment assessed at confinement in jail for three years.

The evidence presented by the state showed that prior to his death the deceased and the appellant had been going together. On the night in question, appellant came to her sister's apartment shortly after midnight and stated that the deceased had slapped her. As she was leaving to go to her apartment next door, appellant told her sister to take care of her 'kids.' Later in the morning, between nine and ten o'clock, the deceased was found on the front seat of an automobile, parked in the 800 block of Ruthven Street, in the city of Houston, about a block from appellant's apartment. An autopsy performed upon the deceased revealed that the cause of death was a gunshot wound in the head.

Appellant was arrested at her home at 3:10 o'clock, p. m., and taken to the police station. While being questioned, appellant told the officers that she had shot the deceased and accompanied them to her sister's apartment, where she got the pistol with which she shot the deceased and gave it to them. The weapon was a .22 automatic pistol containing five live rounds and one hull.

After being duly warned, appellant also made a written statement to the officers which was introduced in evidence as state's exhibit #1. In the statement, appellant related that she and the deceased had been going together and that on the night in question they were at several places drinking beer. Appellant stated that after leaving one of the places the deceased, who was driving, stopped the car on Ruthven Street and cut the motor off. While they were seated in the car the deceased dropped some food, which 'made him mad' and for which he blamed appellant. Appellant stated that when she told the deceased she would clean 'the mess up' he slapped her and told her to get out of the car. She related that when the deceased made a certain statement to her: '* * * I reached in my purse and I got my gun out and I wasn't intending to shoot him I was just wanting to scare him. The gun went off and John [the deceased] sat back but he didn't say anything.' Appellant further stated that after shooting the deceased she went to her sister's apartment, where she put the gun behind some groceries under the sink. Appellant also related that, after her arrest, she went to the apartment with the officers and got the gun with which she had shot the deceased.

Appellant did not testify and called only one witness, who testified that appellant had never been convicted of a felony offense, in support of her application for a suspended sentence.

At the close of the testimony, the court granted appellant's motion for an instructed verdict of not guilty as to murder with and without malice and submitted to the jury the issue of appellant's guilt of negligent homicide in the second degree.

Under the court's charge the jury were required to find, before convicting the...

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5 cases
  • Self v. State
    • United States
    • Texas Court of Criminal Appeals
    • 18 Septiembre 1974
    ...(1954); Bosquez v. State, 166 Tex.Cr.R. 147, 311 S.W.2d 855 (1958); Lavan v. State, 363 S.W.2d 139 (Tex.Cr.App.1962); Brown v. State, 376 S.W.2d 577 (Tex.Cr.App.1964); Fields v. State, 468 S.W.2d 71 (Tex.Cr.App.1971); Gutierrez v. State, 502 S.W.2d 746 The extrajudicial written confession o......
  • Day v. State
    • United States
    • Texas Court of Criminal Appeals
    • 16 Julio 1975
    ...charging an offense with degrees includes lesser degrees even where the elements of the lesser degrees are not alleged include Brown v. State, 376 S.W.2d 577; Meaux v. State, 160 Tex.Cr.R. 121, 267 S.W.2d 833; Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762, 766; Short v. State, 119 Tex......
  • Martinez v. State
    • United States
    • Texas Court of Criminal Appeals
    • 19 Septiembre 1973
    ...or the instrument with which he states the offense was committed.'2 Wallace v. State, 145 Tex.Cr.R. 625, 170 S.W.2d 762; Brown v. State, Tex.Cr.App., 376 S.W.2d 577. ...
  • Sykes v. State, 38932
    • United States
    • Texas Court of Criminal Appeals
    • 19 Enero 1966
    ...513; Taylor v. State, 145 Tex.Cr.R. 158, 166 S,.w.2d 713. The charge given was substantially the same as that approved in Brown v. State, Tex.Cr.App., 376 S.W.2d 577. The claims of error presented as ground for reversal all relate to the portion of the charge which followed the submission o......
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