Cole v. State

• Decision Date: 14 June 1922
• Docket Number: (No. 6813.)
• Citation: 243 S.W. 1100
• Parties: COLE v. STATE.
• Court: Texas Court of Criminal Appeals

243 S.W. 1100

COLE v. STATE.

(No. 6813.)

Court of Criminal Appeals of Texas.

June 14, 1922.

State's Rehearing Denied October 11, 1922.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Alfonso Cole was convicted of murder, and appeals. Reversed and remanded for new trial.

Bulloch & Ramey, of Tyler, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

From a conviction of murder, with a penalty of 40 years in the penitentiary, this appeal is taken.

Elnora Bell, the deceased, an unmarried woman, and appellant had been living together for three or four years. Prior to their familiarity, the evidence indicates that appellant had borne the same relation with one Lena Cheesborough. A few days and nights immediately before the homicide appellant appears to have spent the greater portion of his time with the Cheesborough woman, who lived about a mile and one-half from the house where appellant and deceased were staying. He left the house of the former on Wednesday morning, and that night Elnora Bell was killed by a pistol shot. Appellant's two sons lived with him, but were at a nearby neighbor's at the time the pistol shot was heard; no one being present at the time but appellant and deceased. A few minutes after the shot her body was found at the rear of the house. She was entirely nude, with the exception of a shirt or vest, which came down to about her waist. The shot entered near the center of the back, passing out the front of her body a few inches lower than the point of entry. Appellant claimed the killing to have been the result of an accident. He did not testify upon the trial, but related to others before his arrest; that he had retired, and had laid his pistol in a chair near the bed; that a woman's garment of some kind was over the back of the chair extending down upon the seat, and upon this he placed the pistol; that deceased pulled the garment off the chair causing the pistol to fall and discharge, killing deceased. He pointed out to parties where the ball had passed through one door and into another after traversing her body. The state adopted appellant's statements as true that the same shot that caused deceased's death also passed through and into the doors, but disputed the fact that an accidental shot, discharged as appellant claimed, could have been responsible for it, and contended that appellant fired the shot, either sitting up in the bed, or on the side of it. Proof was introduced by the defense that the holes in the door were made by the accidental discharge of a gun long before the time of the killing. Apparently disinterested parties testified they had observed the holes before that date, and gave the reasons why their attention was directed to them. This proof combatted the state's theory, but also disputed the explanation made by appellant soon after the killing. There was an examining trial, and also a habeas corpus hearing. After these preliminary hearings, but before the trial resulting in this conviction, appellant married Lena Cheesborough. Neither she nor appellant testified on the main trial.

Several matters are brought forward for review, and only by grouping them can the full force of the objections urged be properly understood. The following facts are presented by the various bills of exception:

First. It was shown that just a few days before the killing appellant was at the home of Lena Cheesborough; that he was at her home on Sunday, Monday, Tuesday, and Wednesday before the killing. Exception was reserved to proof of the foregoing facts, because it was not shown that the killing occurred in the presence of Lena Cheesborough. She lived 1½ miles from the killing, and was not shown to have been connected therewith.

Second. The district attorney testified:

"That he was present as district attorney at the examining trial of appellant, in which he was charged with killing Elnora Bell, and was present at the habeas corpus proceedings. That in each of these proceedings the witness Lena Cheesborough testified against appellant; that she testified on each trial as a state witness and put on by the state, and that he had her written testimony."

Exception was reserved to this evidence on the ground that Lena Cheesborough was at the time of the trial appellant's wife; that she could not testify personally against him, and that the testimony of the district attorney made the wife a witness against him; that the testimony of the district attorney was in effect getting before the jury indirectly that the wife of appellant had testified to some facts in the examining trial and habeas corpus proceedings detrimental to him. The trial judge qualified the foregoing bill by stating that he sustained the objection to that part of the testimony that "she testified against the defendant," and instructed the jury not to consider the same.

Third. Proof was made by the witness Jeolla Fleming that after appellant was released upon bond she had a conversation with him relative to his marriage with Lena Cheesborough, in which he stated that he had married her in order to "kill her evidence," that the evidence would be "no good" if he married her. Exception was reserved to this testimony on the ground that appellant's reasons for marrying Lena Cheesborough were improper, in that she was at the time of the trial his wife, and, the marriage not being illegal, the reasons therefor could not be shown as a circumstance against him.

Fourth. During the argument the district attorney said:

"Gentlemen of the jury, we have introduced evidence in this case showing that Lena Cheesborough testified for the state in the examining trial of defendant and on a writ of habeas corpus when the defendant was seeking to get bond, and her testimony was `against defendant,' and she is now defendant's wife, and she has not testified at all in this case."

Exception was reserved to this argument because Lena Cheesborough at the time was appellant's wife, could not testify against him directly or indirectly, and because the remarks of the district attorney were calculated to influence the minds of the jury to the appellant's prejudice, in that it was equivalent to saying that she had already testified to some facts at the former trials that were detrimental to appellant, and were equivalent to having the jury take this as a circumstance against him, and make his wife a witness against him. The court instructed the jury orally to disregard that portion of the district attorney's remarks where he stated that Lena Cheesborough had testified "against the defendant."

Fifth. Arrie Martin had testified upon the trial that immediately after the pistol shot was fired he heard deceased say, "Oh! Alfonso, you shot me." This witness was closely cross-examined relative to the statement he claimed to have heard deceased make, and an affidavit from said witness was introduced in evidence to the effect that the statement heard by him was, "Oh! Fonza, I have shot myself." During the district attorney's argument he told the jury that the first statement testified to by witness was the same one, made soon after the killing, and before this witness had been seen by the defendant and Mr. R. A. Motley, and after ...