Clements v. State, 22325.
Decision Date | 03 March 1943 |
Docket Number | No. 22325.,22325. |
Citation | 169 S.W.2d 190 |
Parties | CLEMENTS v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Nueces County; Geo. C. Westervelt, Judge.
John Clements was convicted of murder, and he appeals.
Reversed and remanded.
Gordon A. Dotson, Levert J. Able, and Troy T. Stokes, all of Houston, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
Appellant was convicted of the murder of Luruth Letts and his punishment fixed at death.
From evidence brought forward the following facts appear. Appellant was twenty-eight years old, a married man with four children, living in Houston. There appellant met and became associated with Miss Letts, a nineteen-year-old unmarried woman. Appellant finally abandoned his family and lived with Miss Letts in improper relations. She left Houston and went to Corpus Christi where she obtained employment. She was followed there by appellant. Miss Letts appeared to be lukewarm toward resuming her former relations with appellant, or at least he thought so. He became desperate over the situation, threatening to take her life and that of anyone with whom she might keep company. On the day of her death Miss Letts was an usherette in a theater in Corpus Christi. She was sent upstairs to perform some duty assigned to her, where she came in contact with appellant who was waiting in an ante room. With a newly purchased knife called an "East Dallas Special" he stabbed her nine times, killing her instantly. Appellant then stabbed himself in the side in what appeared to be an attempt at suicide.
The State offered the following portions of appellant's confession.
.
Upon the trial appellant seemed able to recall all incidents and relate them up to the very moment of the killing. He testified that when he tried to talk to deceased at the theater she appeared to not want to talk to him; that she upbraided him for having told the lady with whom she roomed about their former relations in Houston whereupon she slapped him, and
There are twenty-two bills of exception in the record, many of which we deem it unnecessary to discuss.
Bill of exception No. 1 relates to a colloquy between the court and appellant's attorney regarding the examination of a prospective juror. The incident appears to be trivial and no error is presented.
Bill No. 2 reflects that when the State proposed to introduce the confession of appellant it was objected to on the ground that no proper warning had been given, and that the same was not voluntarily made. It is noted that appellant did not deny that a warning had been given him, but claimed not to have remembered it if he was warned. However, the warning appears upon the face of the instrument itself and the fact of such warning was testified to by other witnesses. There was no claim on the part of appellant that the confession was made under threats, coercion or fear. He merely claims that at such time he was physically weak, and suffering from the self-inflicted wounds and remembered very little about the whole transaction. The trial court gave an exhaustive charge relative to the confession, instructing the jury to disregard the same unless they believed beyond a reasonable doubt that the same was made voluntarily under proper warning and was not induced by fear, threats, coercion, or other improper influence.
Bill of exception No. 3 reflects the following incident. While the witness who took appellant's confession was on the stand the jury was retired from the court room and in their absence the district attorney remarked, in substance, that he thought the State had made out a prima facie case as to the admissibility of the confession. The court then said: "Sss-h, you will be apt to ruin your case, it is a matter first for the court to pass upon and then the jury — not the district attorney." This transaction occurred in the absence of the jury and could in no way have resulted in injury to appellant.
Bill of exception No. 4 brings forward a complaint because appellant was not permitted to show that deceased had at one time worked at a cafe or beer joint where "lots of trouble occurred." The inquiry relative to this matter is brought up in question and answer form by order of the court. It appears therefrom that the witness had answered that "lots of trouble" had occurred at the cafe, at which time the State interposed an objection and the court sustained it after the answer was in the record. The answer of the witness was not stricken and no further proceeding was had or requested regarding the matter.
Appellant filed an application for suspended sentence. Of course, it was necessary for appellant to prove that he had never been convicted of a felony before he was entitled to have the question of a suspended sentence submitted to the jury. It appears from the record that such proof was made not by asking appellant if he had ever been convicted of a felony, but the matter was gotten at in a rather round-about way by his attorney eliciting from appellant the following evidence, without any objection from the State.
By bills 5 and 6 it appears that appellant was recalled to the witness stand by the State for the purpose of cross-examination upon the point indicated. After calling attention to his testimony on direct examination that he had only been arrested and in jail one time, the State then inquired if he had ever served in the United States Army, to which appellant replied that he had served in the cavalry branch of the army in 1934 for a period of about three months. Over objection of appellant that the testimony then sought to be elicited was not germane to any matter pertinent to the case and would tend to prejudice the jury against appellant the State developed from him that he had been "absent without leave" and had never gone back to the army; that as a result the commanding officer of Ellington Field in 1941 ordered him confined to the field for three or four weeks. After this incident was developed the court instructed the jury orally as follows:
Upon redirect examination of appellant regarding the incident he testified as follows:
It will be observed that whatever may have occurred with reference to appellant having been absent from the army without leave there was no showing that he was ever tried for desertion by a court, military or otherwise. It was mere proof of an isolated incident...
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