Cassell v. State, 24158.

• Decision Date: 08 December 1948
• Docket Number: No. 24158.,24158.
• Citation: 216 S.W.2d 813
• Parties: CASSELL v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W.2d 813

CASSELL v. STATE.

No. 24158.

Court of Criminal Appeals of Texas.

December 8, 1948.

Rehearing Denied January 19, 1949.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Lee Cassell was convicted of murder, and he appeals.

Affirmed.

W. E. Pinkston, of Dallas, for appellant.

Will R. Wilson, Jr., Cr. Dist. Atty., George P. Blackburn, 1st Asst. Dist. Atty., Waller M. Collie and Frank C. Moore, Jr., Asst. Dist. Attys., Douglas E. Bergman, Sp. Prosecutor, all of Dallas, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is death.

Appellant challenges the sufficiency of the evidence to sustain his conviction.

The evidence adduced by the state, briefly stated, shows that appellant and Eddie Hamilton killed Lester Linwood Wilson with a piece of iron pipe while burglarizing the "Sportsmen's Center," a store owned and operated by one James M. Brooks. It appears from the record that appellant and his companion entered the back door of a secondhand furniture repair shop where the deceased was employed and where he slept at night. After they had entered the repair shop which was in an adjoining room to the "Sportsmen's Center," they noticed that the deceased was on his bed asleep; they picked up a piece of pipe about three feet long and struck him several blows on the head, crushing his skull which resulted in severe injuries to his brain which caused his death. They then prized open a door in the partition wall between the repair shop and the "Sportsmen's Center" and took therefrom a hunting jacket and two pistols: one a .38 caliber S&W Special and the other a .38 caliber Savage automatic. A few days later they took the .38 caliber S&W Special to Abe Abramson's pawn shop and offered to pawn it to Abramson for the sum of $15. Abramson had been notified of the burglary by the police, who had given him the serial number of the pistol in question and he had been asked to notify the police in case anyone came to pawn the pistol. Abramson took the pistol to the rear of his pawn shop and compared the serial number thereon with the serial number of the stolen pistol furnished by the police and found that the numbers corresponded. He inquired of appellant and his companion where they had obtained the pistol and on being told that they had bought it, he informed them that he was going to call the police, whereupon they hurriedly departed leaving the pistol in the possession of Abramson. Some days later they pawned the Savage automatic pistol to one A. T. Scott for the sum of $3. After appellant and Eddie Hamilton were arrested they told the officers where the Savage automatic pistol was and accompanied the officers to the Union Council where A. T. Scott was engaged in the drug and grocery business, and from whom the officers recovered the stolen Savage automatic pistol. Appellant made a verbal confession to the officers which led to the recovery of the Savage automatic pistol. He later made a written confession. On the trial of his case he repudiated the confession, but admitted that he signed it because the officer to whom he made the confession had promised to help him out all he could and in addition to the promise of help, he, the officer, had told him to sign it. His only defense was an alibi. In our opinion, the evidence is ample to sustain the jury's conclusion of his guilt.

Appellant filed a motion to quash the indictment. He based his motion on two grounds, first: because the indictment is vague, indefinite and uncertain, in this, that it charges that he killed the deceased by striking him with a piece of pipe; that the character of the piece of pipe is not sufficiently described to put him on notice of what he would be required to meet on the trial of the case. This identical question was before this court in the case of Beaver v. State, 63 Tex.Cr.R. 581, 142 S.W 11, 12. In disposing of the question in that case, this court, speaking through Judge W. L. Davidson, among other things, said, "The indictment charges that the instrument used by appellant was a piece of pipe. * * * We are of the opinion that the indictment sufficiently describes the instrument, and there was no error in overruling the demurrers." We think that the opinion expressed by Judge Davidson announced a correct rule. Hence, there is no need for any further discussion of the question.

His next complaint in his motion to quash the indictment is based on the ground of race discrimination practiced by the jury commissioners who selected the grand jury which returned the indictment herein against him. He charged that he was a Negro; that the deceased was a white man; that no Negro was selected by the jury commissioners as a grand juror; that there were from five to ten thousand adult male Negroes, resident citizens of Dallas County, Texas, who were qualified for grand jury service, being about one-seventh of the jury population of Dallas County, Texas; that the jury commissioners who selected the grand jury were white men; that they selected no Negro to serve on the grand jury; that in doing so they discriminated against the Negro race, and thus denied him the equal protection of the law guaranteed him under the 14th Amendment to the Constitution of the United States.

The trial court heard evidence relative to the allegations of race discrimination. Appellant called as witnesses the three jury commissioners to support the allegations in his motion. Each one of the jury commissioners testified in substance that they did not discriminate against the Negro race in the selection of grand jurors; that they sought to select fair and impartial men who were qualified for grand jury service; that they were instructed by Judge King not to discriminate in any way against any race or creed; that he did not tell them that they had to put a Negro on the grand jury; that it was up to them; that it applied to Mexicans and Italians as well. One of the members of the jury commission contacted the principal of the Negro high school, who is a Negro, but he said that he could not serve — that his time belonged to the city schools; that he knew Negro doctors, school teachers, and lawyers, but no one could hardly expect them to neglect their professional duties to their patients and clients to serve for a period of three months on a grand jury. He further testified that before they selected any grand jurors, they contacted men who they knew were qualified to ascertain if they could and would serve. Although there was no Negro selected by them for grand jury service, there was no intentional discrimination by them against the Negro race.

Appellant next called A. C. Partee, who testified that he lived in Dallas County; that he is Executive Secretary of the Progressive Voters' League; that in that capacity he maintained a list of qualified Negro voters in Dallas County; that he would estimate that the adult male voting strength of the Negro race in Dallas County is about five thousand five hundred; that figure includes both poll taxpayers and poll tax exemptions; that if a Negro had been selected as a grand juror for the October Term, he would have known about it; that he knew the names of some Negroes who have served on grand juries, to-wit: Travis Clark, S. W. Hudson, Jr., W. Barton Beatty, Jr., T. W. Pratt, C. F. Stark, and L. M. Turley. The record further discloses that since the year 1943, Negroes were selected as and served as grand jurors at each and every term of court up to October, 1947, when this indictment was returned. It occurs to us that an issue of fact was raised by the evidence which the court, in the exercise of his discretion, determined adversely to appellant, and the court's determination of the issue is binding on this court as much so as if the issue had been decided by a jury. We think that the court was justified in overruling the motion to quash the indictment unless it can be said that a failure to select one or more Negroes for grand jury service at each and every term of court when a grand jury is impaneled is in and of itself conclusive evidence of race discrimination, notwithstanding the fact that Negroes were selected for grand jury service at every preceeding term of court for a number of consecutive years. We have not found any case in which a court has held that it is imperative that one or more Negroes be selected on each and every grand jury in order to comply with the equal protection of the law.

By Bill of Exception No. 2 appellant complains because the court declined to submit to the jury his specially requested charge to the effect: "that if they believed from the evidence beyond a reasonable doubt that Lee Cassell made the oral and written confessions introduced in evidence * * *, but the same were not voluntarily made, or that he was induced by promises made to him by the officers taking the confession, or that he was not warned while under arrest before making same, then, in such event, you are instructed not to consider either of the confessions for any purpose." The court declined to give this charge because the court had fully instructed the jury in his main charge relative to each of the confessions.

Bill of Exception No. 3 reflects the following occurrence: Before the argument to the jury began, appellant noticed that the wife of the deceased and two other relatives moved from the...