Cole v. State, 25649

• Decision Date: 14 May 1952
• Docket Number: No. 25649,25649
• Citation: 250 S.W.2d 201,157 Tex.Crim. 469
• Parties: COLE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 201

250 S.W.2d 201

157 Tex.Crim. 469

COLE v. STATE.

No. 25649.

Court of Criminal Appeals of Texas.

May 14, 1952.

Rehearing Denied June 25, 1952.

George K. DuPuy, Lufkin, for appellant.

Ward R. Burke, Dist. Atty. Second Judicial District, Lufkin, George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Presiding Judge.

This is a conviction for murder, with punishment assessed at confinement in the penitentiary for ninety-nine years.

The indictment consisted of multiple counts; only those counts were submitted to the jury which charge: (a) the murder, with malice, of Vessie Lee McAlister by striking and hitting her with a hatchet, and (b) the murder, with malice, of Vessie Lee McAlister by 'driving an automobile, in which the said Vessie Lee McAlister was then and there riding, into and causing it to collide with a tree, thereby and therewith causing the body of her, the said Vessie Lee McAlister, to be crushed and bruised, and by such manner and means aforesaid, kill the said Vessie Lee McAlister.'

The jury returned a general verdict, with no designation as to the count upon which guilt was predicated.

Under such circumstances, the conviction will be applied to the count or counts finding support in the evidence.

The offense was alleged to have been committed the early morning of May 27, 1951.

About two months prior, Constable Boren was requested by the deceased, Vessie Lee McAlister, a widow, to go to her home in Diboll to evict therefrom the appellant, who the previous night had been intoxicated. The record is silent as to the relationship between them at that time.

On the night before the alleged homicide, appellant, in company with Wasson, went from his home in Angelina County across the river to Trinity County, where they visited beer taverns and indulged in drinking beer. Upon returning to Angelina County, appellant prevailed upon Wasson to drive him to the home of deceased. Arriving there, they found the deceased and Mrs. Taylor seated in the latter's automobile parked in front of the residence. Appellant's attempted entry into the car was thwarted by the closed windows and locked doors evidencing deceased's fear of him. He was ordered to leave and not return, and he and Wasson drove away. They returned, however, a short time later, and found the women still in the car, together with the witness George, who, in the meantime, had joined them. A controversy arose in which the women again ordered appellant and Wasson to leave, threatening to call the officers if they did not do so. The men left and shortly thereafter appellant got out of the Wasson car a short distance from the home of deceased, stating at the time that he was going back. After Wasson and appellant left that time, Mrs. Taylor went home in her car. The witness George also left, but soon returned. Deceased and George then drove around in his car for about a half hour and returned to her home. Shortly afterward, appellant approached the car with a .22 rifle in his hand--which the evidence suggests he had taken from deceased's home. Appellant ordered both George and deceased to get out of the car, which they did. As George reentered his car and drove away, he heard a shot fired from the direction of appellant and deceased. This occurred about 1:30 Sunday morning, May 27. The evidence indicates that the shot George heard was from the .22 rifle with which appellant shot deceased in the arm. Deceased and appellant then went into the house, where some character of struggle ensued between them. Appellant tied the hands of deceased behind her with a strong cord and tied some rags around her wounded arm.

About this time, the sixteen-year-old son of deceased, who lived with his mother, drove home in his mother's car. Deceased and appellant came out of the house and got into the automobile, appellant explaining to him that as his mother had been in an automobile accident it was necessary that they take her to the hospital at Lufkin. All three left in the automobile, with the son driving. Soon thereafter, appellant ordered the boy to drive to the home of his (appellant's) father, near the town of Homer on a farm-to-market road off the Lufkin highway. Arriving there, appellant and deceased got out of the car and went to the rear of the house. Upon their return, the journey was continued--purportedly to Lufkin. Before arriving at the highway, however, appellant ordered the boy to stop the car and get out. Refusing, a struggle followed between them--during which appellant threatened the boy with a hand axe and the rifle. At this, and deceased's urging him to do so for his own safety, the boy got out, and appellant drove off. The son then caught a ride to Lufkin, and reported the incident to the officers.

It appears that appellant drove a short distance up the main highway and turned off to the right toward the town of Huntington on a hard surfaced farm-to-market road. The hard surface, or pavement, ended on or near a curve in the road near the home of the witness Boyett, and continued on as a dirt highway toward the Angelina River--in the vicinity of which the car was wrecked. The witness testified that about three o'clock on Sunday morning he was awakened by his wife, who told him of hearing an automobile traveling at high speed past their home and a crash soon thereafter. Boyett went to the scene of the crash, which was about seventy-five yards from the end of the paved curve and twelve to fourteen feet off the downgrade dirt portion of the road. He there found a Chevrolet automobile which had collided with and wrapped itself around a pine tree about sixteen inches in diameter, at a point behind the driver's seat and just in front of the left rear wheel. Appellant was outside, but near, the car. To witness' inquiry as to whether anyone was hurt, he replied: 'No, I don't think none of them is.' When Boyett suggested that he call an ambulance and get some help, appellant replied: 'No, there's no need. She can get from under there.' Appellant then said to deceased, 'Come on and crawl out from under there,' to which deceased replied in a weak voice, 'I can't. My hands are fastened.'

Boyett then left the scene to go to the hom of Driver, who lived nearby, for his help in trying to remove deceased from the car. Returning together, they endeavored, unsuccessfully, to move the car. Witness testified that at that time he discovered that the deceased was dead, and so told appellant--who made no reply. The witness further testified that he smelled alcohol on appellant's breath, but would not say that he was drunk.

Boyett and Driver, leaving appellant at the site of the wreck, then went to the latter's home and notified peace officers. Upon their return, appellant had gone.

Soon thereafter, Sheriff Jones and the ambulance driver arrived. With the aid of a wrecker they were able to get the car loose from the tree and to extricate the body of deceased. Her hands were still tied behind her. The .22 rifle and an almost empty half-pint whisky bottle were found in the car. Some ten feet from the tree there was found what is referred to as a hand axe or hatchet, described as a single-blade white-handled hatchet about fourteen inches long, with a part of the eye of the hatchet broken. There was evidence that this hatchet had been stolen from the the witness Burnett. The hatchet was offered in evidence. It is significant to note that in describing it no mention is made of any blood stains thereon, nor are there other physical facts tending to show that it was the weapon with which the injuries were inflicted.

An examination of the body of deceased revealed an abrasion about the size of a silver dollar over her right eye, under which there was a definite depressed skull fracture and several minor abrasions about her face, head, and neck; her chest showed multiple scratches and abrasions and also there were several abrasions and scratches on the left hip. The fourth and ninth ribs on the left side were fractured. The gunshot wound in her right arm indicated that it had been inflicted with a gun of small caliber at close range. There were cord markings about both wrists, and her hands were found tied behind her after her death.

The physician who made the examination expressed the opinion that death resulted from the injury to the head or the injuries to the chest. He expressed the opinion that the head injury could have been inflicted with a blunt instrument, such as a hatchet, by using it 'broadside'. He expressed the further opinion that the injury could have been received as a result of the automobile wreck.

Appellant was, without resistance, taken into custody at Huntington on Sunday afternoon--disheveled, his face strained from lack of sleep, his clothing bloody. Other than a superficial cut on his head and minor bruises and scratches, he was unhurt.

Appellant did not testify.

The case was submitted to the jury upon the law of murder with and without malice and of negligent homicide.

In submitting murder with malice, of which offense appellant was convicted, the trial court instructed the jury to the effect that appellant would be guilty (a) if he, with malice...