Chryar v. State
| Citation | 4 S.W.2d 47 |
| Decision Date | 21 March 1928 |
| Docket Number | (No. 11376.) |
| Parties | CHRYAR v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
Moses Chryar was convicted of murder, and he appeals. Affirmed.
J. A. Collier, of Houston, for appellant.
Horace Soule, Crim. Dist. Atty., and Nat H. Davis, Asst. Crim. Dist. Atty., both of Houston, and A. A. Dawson, State's Atty., of Austin, for the State.
The offense is murder; the punishment, death.
According to the state's testimony, appellant was standing on the sidewalk in the dark when deceased, Walter Taylor, came down the street. Without warning appellant shot deceased. Deceased ran a few steps and fell. Appellant followed him and shot him while he was lying in the street. Appellant's son was about the size of and resembled deceased, and on the occasion of the homicide wore clothing similar to that worn by deceased. It was the state's theory that appellant attempted to kill his son because of domestic troubles which he (appellant) believed his son had brought about, and that on the occasion of the homicide he thought deceased was his son. Evidence in support of such theory was introduced by the state. Appellant testified that he killed deceased because he had had improper relations with his (appellant's) wife.
There were no objections to the court's charge. Five bills of exception are brought forward.
Bill of exception No. 1 is concerned with appellant's contention that the court erred in permitting the district attorney to ask appellant if his son had not prohibited him from beating his (appellant's) wife. The ground of objection was that the district attorney was giving testimony. As far as the bill of exception is concerned, no facts are stated therein which would negative the propriety of the question. The bill merely contains the question, the negative answer given by appellant, and the ground of objection. In view of the fact that the extreme penalty was assessed we have consulted the statement of facts to determine whether error was committed in permitting the district attorney to ask the question complained of. We are of the opinion that under the facts the question complained of was proper as against the objection made. If the conduct of appellant's son had been such as to create in appellant's mind ill will and hatred toward him, the interference of his son with the mistreatment by appellant of his (appellant's) wife would have supported the state's theory that appellant intended to kill his son at the time he shot deceased. Hence testimony to such effect would have had material bearing on the appellant's state of mind at the time the homicide was committed.
By bill of exception No. 2 appellant complains of the action of the district attorney in tendering to him his wife as a witness. It was an issue as to whether appellant and his wife were living together. A defense witness testified that she had seen appellant shortly before the homicide in a rooming house with a woman whom appellant claimed was his wife. Appellant's wife, being under process, was at this juncture brought into the courtroom by state's counsel for the purpose of being identified by the witness. After having been identified by the witness, state's counsel tendered to appellant his wife as a witness. It was appellant's theory that he killed the deceased because of improper relations with appellant's wife, and in support of such theory he testified in effect that his wife had advised him that she and deceased were having illicit relations. It is thus seen that appellant's wife was in the position to support his contention that he killed deceased because of the fact that he had alienated his wife's affections and engaged in reprehensible conduct where she was concerned. It is the general rule that when it appears from the evidence that the wife of the accused knows facts which, if true, would be to his interest, the state may comment in argument on the failure of the accused to produce his wife as a witness. Cole v. State, 92 Tex. Cr. R. 368, 243 S. W. 1100, and authorities cited; Coffey v. State, 60 Tex. Cr. R. 73, 131 S. W. 216; Branch's Annotated Penal Code, § 372, and authorities cited. In the case of Cole v. State, supra, and Norwood v. State, 80 Tex. Cr. R. 563, 192 S. W. 248, exceptions to the rule last stated were noted. The facts of the instant case, however, are not within the exceptions announced in said cases. In Coffey v. State, supra, in passing on the question under consideration here, the...
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