Crain v. State

• Decision Date: 07 October 1964
• Docket Number: No. 36919,36919
• Citation: 394 S.W.2d 165
• Parties: Paul R. CRAIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 165

394 S.W.2d 165

Paul R. CRAIN, Appellant, v. The STATE of Texas, Appellee.

No. 36919.

Court of Criminal Appeals of Texas.

Oct. 7, 1964.

Rehearing Denied Nov. 25, 1964.

Second Motion for Rehearing Denied Jan. 13, 1965.

Jim S. Phelps, W. W. Kilgarlin, Fred W. Robinson, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The testimony of the state shows that the appellant killed Warren Russell Crain, a boy, eleven months old, by choking and strangling him with his hands. Except for one deleted paragraph, appellant's voluntary written statement made to the officer on the day of the killing, and two notes written by appellant, all of which show the killing of the boy by appellant, were introduced in evidence without objection.

Relying on temporary insanity as his sole defense, the appellant entered a plea of not guilty. Testifying in his own behalf, the appellant admitted that he killed the boy by choking and strangling him, but stated that he (appellant) blacked out at the time and did not realize he was committing such act until it was over. He offered other testimony bearing on his defense of insanity.

The jury resolved the issue of insanity against the appellant, and the evidence is sufficient to support their verdict.

Appellant insists that the trial court erred in refusing his motion that he be examined at the expense of the state by a competent psychiatrist who was not connected with the prosecution.

There is no constitutional or statutory provision authorizing that such services be furnished by the county or state to a person charged with crime. Ellzey v. State, 158 Tex.Cr.R. 604, 259 S.W.2d 211; Bush v. State, Tex.Cr.App., 353 S.W.2d 855.

It is contended that the trial court erred in ruling that if appellant introduced any part of his military record, the state would be permitted to introduce the remainder of such record, and again erred in refusing the offer of his military record to perfect his bill of exception.

The statement of facts on the main trial reveals that from a discussion between the court and counsel for both parties that the military record consisted of numerous reports and instruments.

The court stated that, as he understood the rule, if appellant introduced any part of the record, the state could offer any part or all of the remainder; that any action of the court was premature until the military record or a portion of it was offered in evidence; and that a bill of exception could be perfected if there was an objection followed by an adverse ruling. No offer was made by the appellant of all or any portion of his military record in evidence. In the absence of any offer in evidence of the military record, no error is shown.

It is insisted that the trial court erred in refusing to instruct the jury not to consider the prosecutor's questions as to whether appellant was discharged because he had been convicted of being absent without leave and for theft of an automobile while in the military service in Germany, even though appellant answered in the negative.

Following two questions regarding appellant's convictions for AWOL and automobile theft, request was made of the court to instruct the jury to disregard the questions as to whether convictions were the reasons for his discharge.

The cross-examination of the appellant was in part as follows:

'Q. (State) Isn't it true you were convicted as to--for theft and received four months and loss of pay for stealing a coat, a top coat, and a suit from a soldier while you were in Germany? You received four month and loss of pay from it?'

Appellant: 'Objection. Its not in rebuttal.'

The Court: 'Sustain the objection. Put a time limit on it.' * * *

'Q. When were you convicted of that by court martial and given four months and loss of pay for theft?'

'A. There was a question upon the theft that was involved.'

'Q. You were convicted, weren't you?'

'A. I was convicted of a lesser, yes sir.'

During the cross-examination of Dr. Sher he testified:

'Q. In your reports you have stated that the defendant told you he was court martialed for going AWOL and for theft of an automobile, is that correct?'

'A. That's what I have in my reports.'

'Q. Could you have confused that with the theft of some clothes?'

'A. I suppose so but I don't think so. I think there's some pretty wide spread between clothes and an automobile. That's what he told me.'

'Q. I agree there is a wide spread between the offense listed. He told you in 1959 he received a court martial for going AWOL and theft of an automobile?'

'A. That's correct.'

In view of all the evidence, no error is shown by the refusal of the court to instruct the jury not to consider the questions about the former convictions.

Complaint is made of the use of the phrase 'a person shall not be tried for an offense if he becomes insane' on the ground that it constitutes a comment on the weight of the evidence, thereby leading the jury to believe that appellant would not be on trial if he were insane.

From the court's charge on insanity and the findings to be made thereon by the jury, it appears that the phrase complained of did not mislead the jury, and that appellant's rights were fairly and adequately protected in the charge.

Complaint is made of the refusal of members of the jury, after they had been discharged, to talk with appellant's attorney, bacuase they had agreed not to discuss what went on during their deliberations, on the ground that their agreement made it impossible to ascertain any jury misconduct.

There is no statutory authority requiring a disclosure by the members of the jury of the matters considered during their deliberations. The mere agreement of the jury not to discuss their deliberations is not alone sufficient to call for a reversal. Farrar v. State, 162 Tex.Cr.R. 136, 277 S.W.2d 114; Graves v. State, Tex.Cr.App., 382 S.W.2d 486, 1964.

The refusal of appellant's request to instruct the jury, in accordance with the provisions of Art. 2, Vernon's Ann.P.C., that the object of punishment is to suppress crime and reform the offender was not error, as it would constitute a comment on the weight of the evidence. White v. State, 165 Tex.Cr.R. 339, 306 S.W.2d 903.

The bills of exception contained in the transcript were timely filed with the clerk of the trial court. The bills were qualified by the trial judge and timely returned to the clerk. Appellant objected and excepted to such qualifications, and the exception was certified by the trial court, and no bystanders bills were filed. Therefore the bills cannot be considered. Willie v. State, 169 Tex.Cr.R. 393, 334 S.W.2d 159; English v. State, 170 Tex.Cr.R. 56, 338 S.W.2d 446.

The judgment is affirmed.

ON APPELLANT'S MOTION FOR REHEARING

MORRISON, Judge.

Appellant's court appointed counsel in forceful argument attacks our original opinion in two major respects. He complains of our failure to discuss his contention that the court erred in refusing his request to open and close the argument on the issue of insanity. Though we did fail to discuss this contention in appellant's case, we did dispose of this question in our opinion in Knoeppel v. State, Tex.Cr.App., 382 S.W.2d 493, decided the same day as appellant's case on original submission. We adopt by reference in the case at bar the reasons there stated for the disposition of this question.

He further focused his attack upon the last paragraph of our original opinion and takes us to task for not applying, as he says, the rule in Moore v. State, Tex.Cr.App., 380 S.W.2d 626. In Moore the trial judge certified that the following action was taken:

'The Court does not certify to the truthfulness of the contents therein but he does certify that they are only contentions of the Defendant.'

On rehearing the majority held that 'the Court's certificate in the bill constituted no action at all', therefore, no rule of procedure was announced in Moore. But here we do have something in that the court in his certificate referred to the record and, in effect, stated that if error is there presented he was bound thereby. Another and far more important difference is that Moore did not bring himself within the rule announced in Willis v. State and English v. State, supra, whereas appellant did. In order to demonstrate that appellant's cause was in no wise injured by our adherence to the Willis and English rule, we will discuss appellant's contentions which were not covered by our original opinion. In the first paragraph hereof we have answered his fourth contention.

His fifth contention was that the court erred in overruling his challenge for cause to venirewoman Pancamo when she replied in the affirmative to the question, 'If you find him sane and you find him guilty, you would still send him to the electric chair?' Prior to this question she had been informed that appellant was charged with killing his 11 months old child and that the only issue to be submitted for her decision was that of appellant's sanity. Under the circumstances her answer showed no prejudgment.

His sixth contention is that the court erred in overruling his challenge for cause...