Cockrell v. State

• Decision Date: 06 April 1938
• Docket Number: No. 19458.,19458.
• Citation: 117 S.W.2d 1105
• Parties: COCKRELL v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W.2d 1105

COCKRELL v. STATE.

No. 19458.

Court of Criminal Appeals of Texas.

April 6, 1938.

Rehearing Denied June 22, 1938.

Appeal from District Court, Burnet County; Raymond Gray, Judge.

James K. Cockrell was convicted of murder with malice, and he appeals.

Affirmed.

Lawrence L. Bruhl and Raymond O. Furr, both of Llano, and Stinson, Hair, Brooks & Duke, of Abilene, for appellant.

Carlos C. Ashley, Dist. Atty., of Llano, F. H. Hammond, Thos. C. Ferguson, Sp. Counsel, and Henry Crawford, Co. Atty., all of Burnet, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

This case is a conviction for murder with malice, and a penalty of forty-five years.

We deem a recital of a brief summary of the facts to be necessary.

The appellant, a young man of twenty-two years of age, lived at Lampasas, Tex. On Sunday, the 20th day of June, 1937, he was in company with a Mrs. Vernadine Brandon in a black sedan automobile, and had driven to Buchanan Dam on the Colorado river, later coming to Burnet about 6:45 o'clock. When he first appeared at a restaurant in Burnet he ordered a bottle of beer, and the witness noticed that he had been drinking; after that he ordered another bottle of beer; his companion also seemed to have been drinking. Another witness, at about 7 o'clock, had two bottles of beer with appellant, and the lady also had two bottles served to her. In leaving out of this latter place, the witness places appellant at the wheel of his car, and, as appellant turned the corner coming out of state highway No. 66, he turned it faster than most people do. It also seems that just as appellant came into the suburbs of the city of Burnet he and his companion each drank a bottle of beer, and as they got into the car to leave the beer joint appellant was heard to say: "Let me drive. I better try to sober up a little." It seems that the lady was driving the car when they first approached this tavern. We next find appellant at the café of Mrs. Bullion and Miss Brister, who both testify that about dark, when leaving their café, on the west side of highway 66, in the city of Burnet, the appellant backed his car onto the highway and across the same and into a ditch on the east side thereof, and then went up the highway in a northerly direction. It was dark and time to turn on the lights. Mr. White, who operates a store and filling station in Burnet on the corner where highways 29 and 66 come together, testified that on the evening in question, at about 8 o'clock, he was out in front of his place servicing a car, and was watching the highway in order to intercept a certain coupé. He saw a black sedan, either a Ford or Chevrolet, going north at a speed of from 50 to 60 miles per hour, with a man driving. He first saw it about 200 feet south of his place. When it got within about 100 feet of his place, it swerved across the road and ran within about 20 feet of his station, and then continued on in its journey north. He saw no other car near there traveling at that time.

Lee Bird testified that on Sunday, June 20, 1937, he and his wife and five children, who lived about a mile north of Burnet and a half mile west of highway No. 66, had started to church in Burnet. They had walked east along a lane to highway 66 and turned south. Two of the children were walking in front, he was carrying a baby, his wife walking by him, and two other children were right behind him and his wife. Ace Lee Bird, three years old, and Walter Bird, seven years old, were the ones behind. They were about 8 feet west of the pavement—none on the pavement. As witness reached the highway and turned south two or three steps, at about 8 o'clock, he saw the lights of a car coming down the road in his direction, his wife was by his side, and the two little boys maybe a half step behind him, all in the weed growth to the west. This car, traveling fast, suddenly turned to its left and came across the road right straight towards him. He stopped, and when he saw that the car continued to come towards him, he moved to his right; the car came within 2 feet of him and his wife, and struck the children, Ace Lee and Walter Bird, with two distinct thuds, knocking them from 15 to 20 feet to the west; one died immediately, and the other died in about three hours thereafter. After striking the children, this car then crossed back to its right side, or the east side of the highway, without checking its speed to any appreciable extent and proceeded on north. A man was driving this car. There were no cars coming from the north at such time.

The appellant's statement was introduced in evidence, and his only defense appears therein. He states that after leaving Mrs. Bullion's café that he proceeded out of town, and seemed to fall asleep, and upon awakening a car's lights were in his eyes, temporarily blinding him; that he turned west to his left in order to avoid this car, and he felt his car hit something. After proceeding about 400 yards, he returned to the place where he hit something, and was informed that two children had been struck by an automobile, and that they had been taken to a hospital. He then proceeded to Lampasas by way of Bertram, Briggs, and Lampasas, an out of the way route.

Appellant's first complaint is relative to the court's overruling his motion for a change of venue. It would appear that the court called a special term to convene on July 12, 1937, and appellant was indicted on July 15, 1937. The first count in the indictment charged him with malice aforethought killing Ace Lee Bird and Walter Bird by driving an automobile into said Ace Lee and Walter Bird. The second count charged that in the execution of an unlawful and felonious act, through mistake and accident appellant drove an automobile against said children. The third count charged him with maliciously killing Walter Bird, and the fourth count charged the same thing as to Ace Lee Bird. The court then called a second special term to try such indictment on July 26, 1937.

The appellant duly presented his motion for a change of venue, supported by three compurgators. We also find a controverting affidavit of the district attorney alleging the lack of information upon the part of the compurgators, and asserting that a fair trial could be had in such county, and we find nothing further relative thereto. There seems to have been no testimony offered thereon, and the court must have decided the matter and refused the motion on the strength of the affidavit alone, at least we find no facts relative thereto in the record, nor incorporated in the bill of exceptions to the court's action. We can see no error presented relative to the court thus refusing the change of venue. See Branch's Ann.P.C. p. 181, § 301. It would seem that there was no difficulty experienced in selecting a jury out of the first sixty men presented out of the venire of eighty summoned. We do not think the trial court abused his discretion in his ruling hereon. See Reis v. State, 130 Tex.Cr. R. 541, 95 S.W.2d 700; and cases there cited; Whiteside v. State, 115 Tex.Cr.R. 274, 29 S.W.2d 399, 400; Bell v. State, 80 Tex.Cr.R. 475, 190 S.W. 732; Carlile v. State, 90 Tex.Cr.R. 1, 232 S.W. 822.

Appellant next complains of the court's action in overruling his motion for a continuance. He filed several supplements to his original motion until it is difficult to say where his first motion ends and subsequent motions begin, but the burden of all seem to be the fact that his sister Mrs. Gladys Du Bois, who lived in Dallas, Tex., was forbidden by her doctor to travel for a period of two weeks on account of an operation she had recently undergone. The only evidence thereof is a letter from the doctor addressed to Mrs. Du Bois, not sworn to, nor even addressed to the court, and included in such motion only. Suffice it to say, we have gathered from a perusal of all of them that appellant desired to prove by this witness that he was injured in an automobile wreck in February, 1937, in which his two companions were killed; that he had probably had a concussion of the brain; that he had at times a severe pain over his right eye; that he would have spells, sometimes two or three a week, when he would become listless, and seemed not to know with whom he was talking, and sometimes he would act as though he was talking to his two dead companions, and it is also stated therein that he (appellant) does not know that he had any such attack on the evening in question when these children were killed. He does say that he has learned that his woman companion, Mrs. Brandon, will testify that he had such an attack on the evening in question. He further alleges therein that if some of the State's witnesses take the stand, that his sister would be in the position to impeach them in the event they gave certain testimony contradictory of what they had stated to her when she had previously talked to them, especially naming the county attorney, Mr. Crawford, relative to the appellant's statement introduced herein. It is noted that all the latter portion of this motion as to impeaching testimony is highly speculative, and cannot be appraised therefrom. The only witness mentioned, Mr. Crawford, did not testify at all, and, of course, if the lady had been present, she could not have been used to impeach him. The motion for a new trial does not contain any affidavit from Mrs. Du Bois showing what her testimony would have been. Had she been present, the only testimony she could have given that now seems pertinent, in our judgment, would have been relative to the purported recurring attacks of appellant, and this would not have had any appreciable weight unless he was suffering with such an attack at the time of the killing of the two children. Mrs. Brandon was present at such time, and her testimony was available to the appellant, but he did not use her. It seems to us that the failure to have the affidavit of Mrs. Du Bois attached to...