Cotton v. State

• Decision Date: 06 February 1929
• Docket Number: (No. 11977.)
• Citation: 19 S.W.2d 319
• Parties: COTTON v. STATE.
• Court: Texas Court of Criminal Appeals

19 S.W.2d 319

COTTON v. STATE.

(No. 11977.)

Court of Criminal Appeals of Texas.

February 6, 1929.

Rehearing Granted June 26, 1929.

Commissioner's Decision.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

Ira Cotton was convicted of assault to murder, and he appeals. Reversed and remanded.

Dial & Brim, of Sulphur Springs, and Crosby & Estes, of Greenville, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, assault to murder; penalty, 15 years in the penitentiary.

Appellant and the injured party, Liston Scroggins, were brothers-in-law, appellant having married a half-sister of Scroggins. The injured party was a boy about 17 years old. Evidence was introduced tending to prove the state's theory that appellant induced prosecuting witness to take out a policy of $6,000 insurance with an indemnity clause entitling the beneficiary to $12,000 in case of accidental death and naming the wife of appellant as beneficiary; and that thereafter witness was shot through the head with a pistol by appellant. Some of the testimony tending to bear out the state's theory shows in substance that appellant advised prosecuting witness to take out such insurance, accompanied him to the office of one Spurlock, an insurance agent, secured said insurance policy on the life of prosecuting witness, paying therefor and having the policy delivered to him; that same was kept secret from the mother and father of prosecuting witness; that appellant had a pistol hidden in a lap robe, and induced prosecuting witness to hold said lap robe up to his head, pretending there was a cricket or rat in there, and, while holding it to his ear, appellant being hidden from view by the lap robe, pulled the trigger of the pistol and shot prosecuting witness, the bullet going entirely through his head. Witness recovered and testified at the trial. Appellant's defense was that the shooting was an accident with which he had no connection.

Complaint is made in bill of exception No. 1 of certain leading questions propounded to prosecuting witness. Nothing is shown in the bill that could have injured appellant or prejudiced his case, and, in the absence of such a showing, the bill fails to show reversible error. West v. State, 2 Tex. App. 474; Branch's P. C. § 157.

By bill of exception No. 9 it is reflected that appellant, while testifying in his own behalf, was required to answer that he had been indicted previously for murder and for assault to murder, and further testified to the result of the trial of himself on each of said charges. This was objected to as immaterial, irrelevant, prejudicial, and as not the best evidence. Having offered himself as a witness, such proof was material and relevant as affecting his credibility as such. The inquiry was a proper one, and such matters do not have to be proven by certified copies of indictments or judgments of conviction under the circumstances named. Lights v. State, 21 Tex. App. 313, 17 S. W. 428; Branch's P. C. § 167.

Objection was made to proof by the father and mother of prosecuting witness as to whether they had ever seen their boy with as much as fifty or sixty dollars. Since it was made an issue as to who paid for the policy of insurance, appellant contending that prosecuting witness did, and the state contending that appellant paid for same, such testimony was, we think, relevant upon this issue. The witnesses were shown to be in a position to know whether or not the boy possessed any money, and we regard it as highly material to show that prosecuting witness could not have paid for the policy of insurance on his life.

Bill of exception No. 14 sets out an extended argument of the county attorney, too long here to quote. It is claimed that the effect of this was an insistence upon a conviction because of the commission by appellant of the crimes of murder and assault to murder, which was introduced only as affecting his credibility. The court instructed the jury both orally and in writing that this evidence was to be considered only in passing on the credibility of the witness. Granting that the effect of this argument was as claimed, we do not think that it presents such error as demands a reversal. No special charge was asked to disregard same. The law governing such matters has been too oftimes stated to make profitable a reiteration or elaboration of same. All such arguments must be appraised in the light of the entire record and verdict rendered. The argument complained of does not impress us as being of that character, the effect of which cannot be cured by an instruction from the court. See Yett v. State (Tex. Cr. App.) 7 S.W.(2d) 94, and authorities there cited. We are convinced that the verdict of the jury was in response to the evidence, which seems amply sufficient to support a conviction, rather than in response to any improper argument. While the jury assessed the maximum penalty, this is not surprising if the jury gave credence, which they undoubtedly did, to the state's testimony. Without intending to commit ourselves to the expression of any opinion as to the guilt or innocence of appellant, we can conceive of no reason for a jury being lenient toward an accused whom they believed guilty of attempting the murder of an unoffending boy for the insurance on his life.

Bills of exception Nos. 2, 3, 4, 7, 8, and 11 all bear the following notation at the conclusion of same: "Examined, refused, filed as a part of the record in this case. Grover Sellers, Judge." No qualification or explanation appears to any of these bills, nor does there appear any substitute bills prepared and filed by the judge in lieu of same. Under these circumstances, we are compelled to consider all these bills of exception. Addressing himself to the same question, Presiding Judge Morrow in Rosa v. State, 86 Tex. Cr. R. 651, 218 S. W. 1056, 1058, uses the following language:

"Some, though not all, of the bills of exceptions to which we have referred, are those filed in time but marked, `Refused.' The procedure to be followed by the trial judge when a bill of exceptions is prepared and presented to him within the time allowed by law for filing it is provided by statute. Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999. Where a bill is prepared by the appellant, and presented to the trial judge in time, it is his duty, if he disagrees from its correctness, to file with it a bill which presents...