Click v. State

• Decision Date: 20 May 1931
• Docket Number: No. 14230.,14230.
• Citation: 39 S.W.2d 39
• Parties: CLICK v. STATE.
• Court: Texas Court of Criminal Appeals

39 S.W.2d 39

CLICK v. STATE.

No. 14230.

Court of Criminal Appeals of Texas.

May 20, 1931.

Commissioners' Decision.

Appeal from District Court, Llano County; J. H. McLean, Judge.

Ray Click was convicted of murder, and he appeals.

Reversed and remanded.

A. G. Mueller, of Llano, Walter Petsch, of Kerrville, Alfred Petsch, of Fredericksburg, and J. F. Taulbee, of Georgetown, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Offense, murder; punishment, confinement in the penitentiary for life.

The killing took place on the 11th day of September, 1930, on a street in the residence section of Llano, and was viewed by approximately half a dozen eyewitnesses. The deceased was seen and heard begging for his life, and was shot in the back as he ran from the appellant across the street.

The appellant admitted the shooting and killing of deceased, but claimed that the difficulty in which the deceased lost his life grew out of the conduct and treatment of the deceased towards the wife of appellant; that just recently before the shooting took place he had first hand information of the deceased's misconduct towards his wife; that on the night preceding the killing he saw the deceased in company with his wife under suspicious circumstances on the streets in the town of Llano; that thereafter on the same night his wife communicated to him concerning the misconduct of the deceased towards her, and also threats deceased had made to take the life of the appellant; that the next morning after said communication had been made to him by his wife he met the deceased accidentally; that, when he first saw the deceased, deceased was sitting on a tractor, and that he jumped off of the tractor, and that he did not know what deceased was going to do; that he killed the deceased because he had insulted his wife, abused her, and tried to rape her, and had tried to break up his home and ruin his life and had made threats against him.

Bill of exception No. 6 complains that, while the appellant was testifying on cross-examination, the district attorney asked the appellant the following question, which had not been alluded to in any part of the appellant's examination, to wit: "Now then, Mr. Click, if that be true, tell the jury why it was that you made the statement, under due and proper warning, after your arrest, in the presence of J. B. Mayes, this Justice of the Peace, and in the presence of Dan McDonald, and in the presence of Mr. Bruhl, County Attorney, that you had intended to kill the deceased on Wednesday, but your heart failed you."

Appellant objected to the question, among other reasons, because it appeared from said question that at the time of the alleged confession the appellant was under arrest, and that the alleged confession had not been reduced to writing and witnessed, as required by law. The bill further shows that, in the presence of the jury, after said objection was made, the district attorney made a lengthy argument, contending, among other things, that said confession did not have to be in writing, and that for impeachment purposes, when the defendant gets on the stand and says a certain thing, the state can show that there had been contradictory statements made by the defendant, and that under the law the state had the right to elicit the evidence for impeachment purposes. The bill further shows that the court called upon both sides to submit authorities; that the appellant submitted his authorities, and that thereupon the court stated in the presence of the jury that "We will now proceed to make the record," and directed the district attorney to ask the question again; that thereupon the same question was again asked the appellant in the presence of the jury, and the court asked the appellant's counsel, "Now what is the defendant's objection to that question," and thereupon the appellant's counsel again objected to said question, whereupon the court stated that the objection would be sustained for the time being. Appellant's counsel thereupon moved the court to instruct the jury to the effect that the question was improper, and that the state had no right to ask the same, and that the jury must not consider said question or the argument of the district attorney in reference thereto, and that in reply to said motion the court made the following statement to the jury, to wit: "The Court will take it that the jury understands that they are to consider no testimony except that which goes before them and is permitted. Of course when this matter comes up, the record can be made and the question which is now under discussion is not in evidence, and unless it is in evidence, if it ever is, you will not be permitted to consider what has been said in your presence."

The bill further shows that the court at no time thereafter ever granted the motion of the appellant to instruct the jury to the effect that the question was improper and that the state had no right to ask the same, and that the jury must not...