Clark v. State

• Decision Date: 14 January 1953
• Docket Number: No. 26141,26141
• Citation: Clark v. State, 159 Tex. Crim. 187, 261 S.W.2d 339 (Tex. Crim. App. 1953)
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 339

261 S.W.2d 339

159 Tex.Crim. 187

CLARK v. STATE.

No. 26141.

Court of Criminal Appeals of Texas.

Jan. 14, 1953.

Rehearing Denied April 8, 1953.

Certiorari Denied Oct. 19, 1953.

See 74 S.Ct. 69. Robert C. Benavides, James H. Martin and Newton Kennedy, Dallas, and William C. McDonald, San Angelo, (on appeal only), for appellant.

Earl Smith, Dist. Atty., H. C. Upton, Special Prosecutor and B. W. Smith, Special Prosecutor, San Angelo, George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is murder; the punishment, death.

The deceased secured a divorce from appellant on March 25, 1952. That night she was killed, as she lay at home in her bed, as the result of a gunshot wound. From the mattress on her bed, as well as from the bed of her daughter, were recovered bullets which were shown by a firearms expert to have been fired by a .38 special revolver having Colt characteristics. Appellant was shown to have purchased a Colt .38 Detective Special some ten months prior to the homicide.

The State relied in main upon three witnesses to establish its case.

Appellant's former step-daughter, the daughter of deceased, testified that she awoke on the night in question and saw appellant standing by her bed; that she asked him what he was doing there; and he said that he had come to ask her help in persuading her mother to come back to him. The witness declined to be of such aid, and the appellant said, 'That is all I wanted to know.' She then saw a pistol in his hand.

Tomas Menchaca testified that he had been in appellant's employ for fourteen years and that he was with the appellant throughout the night of the homicide. He stated that, as they drove about the city throughout the early part of the night, they discussed the fact that appellant's wife had divorced him that day. Menchaca related that during the course of the night the appellant announced that he wanted to talk to his wife; that at the time appellant was armed with one large and one small pistol; that they parked near deceased's home, and the appellant left him in the automobile for approximately thirty minutes. The witness stated that while he was waiting for appellant he heard a noise that sounded like a shot, but that when appellant returned he reported that he had had a long talk with his wife. Menchaca related that upon their return to the hotel appellant wrote a letter, stated that he was going to place a long distance call to a friend in Dallas, sent the witness out to mail a letter; and when the witness returned he overheard appellant's last statement over the telephone as follows, 'All right, I will do it.' The witness related that following the telephone conversation he and the appellant left the hotel again; that appellant was still wearing the two pistols; that after driving a distance appellant let him out of the automobile and told him to wait; that he did so; that appellant returned in some twenty minutes; and when they got back to the hotel he noticed that the smaller of the two pistols was missing from appellant's person; that appellant warned him not to disclose what they had done that night; but that at no time had appellant confided in him concerning his activities further than as set forth above. Menchaca identified the knife found in deceased's bed as belonging to appellant. The witness admitted that he had been charged as an accessory, had been placed in jail for a while, and had failed to disclose what he knew to the prosecuting officials when first questioned by them.

Marjorie Bartz, a telephone operator in the City of San Angelo, testified that at 2:49 in the morning of March 26, 1952, while on duty, she received a call from the Golden Spur Hotel; that at first she thought the person placing the call was a Mr. Cox and so made out the slip; but that she then recognized appellant's voice, scratched out the word 'Cox' and wrote 'Clark.' She stated that appellant told her he wanted to speak to his lawyer, Jimmy Martin in Dallas, and that she placed the call to him at telephone number Victor 1942 in that city and made a record thereof, which record was admitted in evidence. Miss Bartz testified that, contrary to company rules, she listened to the entire conversation that ensued, and that it went as follows:

The appellant: 'Hello, Jimmy, I went to the extremes.'

The voice in Dallas: 'What did you do?'

The appellant: 'I just went to the extremes.'

The voice in Dallas: 'You got to tell me what you did before I can help.'

The appellant: 'Well, I killed her.'

The voice in Dallas: 'Who did you kill; the driver?'

The appellant: 'No, I killed her.'

The voice in Dallas: 'Did you get rid of the weapon?'

The appellant: 'No, I still got the weapon.'

The voice in Dallas: 'Get rid of the weapon and sit tight and don't talk to anyone, and I will fly down in the morning.'

It was stipulated that the Dallas telephone number of appellant's attorney was Victor 1942.

Appellant testified in his own behalf and claimed that he was emotionally upset and did not remember the events of the evening.

The issue of insanity was raised by the testimony of other witnesses and resolved against the appellant by the jury. We find the evidence sufficient to support the verdict.

We now discuss the contentions raised by appellant's able counsel in their carefully prepared brief.

Proposition (1) is predicated upon the contention that Miss Bartz did not know the identity of the parties whose conversation she overheard. Miss Bartz testified that she had placed long distance calls for appellant before the night in question and that she recognized his voice when he placed the call to his lawyer Jimmy Martin in Dallas. It was stipulated that the telephone number on the company record of the call introduced in evidence was that of appellant's attorney in Dallas. Recently, in Schwartz v. State, Tex.Cr.App., 246 S.W.2d 174, we had occasion to quote with approval from 22 C.J.S., Criminal Law, § 644, relating to the same contention, as follows:

'The completeness of the identification goes to the weight of the evidence, and not to its admissibility. Whether evidence of a telephone conversation is admissible rests in the discretion of the trial court.'

In Collins v. State, 77 Tex.Cr.R. 156, 178 S.W. 345, 355, this Court quoted with approval from Encyclopedia of Evidence as follows:

'Voice is a competent means of identification if the witness had any previous acquaintance with the person identified. It is sufficient that the witness has heard such person's voice but once previous to the time in question.'

In Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. 742, this Court held admissible the testimony of the telephone operator who overheard a conversation between the accused and Mrs. Neff. See also Stepp v. State, 31 Tex.Cr.R. 349, 20 S.W. 753.

Proposition (1b) is predicated upon the contention that the court erred in admitting the testimony of the telephone operator, because the conversation related was a privileged communication between appellant and his attorney.

As a predicate to a discussion of this question, we note that the telephone operator heard this conversation through an act of eavesdropping.

In 20 Am.Jur., p. 361, we find the following:

'Evidence procured by eavesdropping, if otherwise relevant to the issue, is not to be excluded because of the manner in which it was obtained or procured * * *.'

This Court has recently, in Schwartz v. State, supra, affirmed by the Supreme Court of the United States on December 15, 1952, 73 S.Ct 232, authorized the introduction of evidence secured by means of a mechanical interception of a telephone conversation.

We now discuss the question of the privileged nature of the conversation. Wigmore on Evidence (Third Edition), Section 2326, reads as follows:

'The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication. This much, but not a whit more, is necessary for the maintenance of the privilege. Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is a derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications.'

The precise question here presented does not appear to have been passed upon in this or other jurisdictions.

In Hoy v. Morris, 13 Gray 519, 79 Mass. 519, a conversation between a client and his attorney was overheard by Aldrich, who was in the adjoining room. The Court therein said 'Aldrich was not an attorney, not in any way connected with Mr. Todd; and certainly in no situation where he was either necessary or useful to the parties to enable them to understand each other. On the contrary, he was a mere bystander, and casually overheard conversation not addressed to him nor intended for his ear, but which the client and attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it. But, in consequence of a want of proper precaution, the communications between him and his client were overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony; and he might therefore, when summoned as a witness, be compelled to testify as to what he overheard, so far as it was pertinent to the subject matter of inquiry upon the trial * * *.'

In Walker v. State, 19 Tex.App. 176, we find the following:

'Mrs. Bridges was not incompetent or disqualified because she was present and heard the confessions made by defendant, even assuming that the relation of attorney and client subsisted in fact between him and Culberson.'

The above holding is in conformity with our statute, Article 713, Code Cr.Proc.

'All...