Curry v. State, 25209

• Decision Date: 21 March 1951
• Docket Number: No. 25209,25209
• Citation: 156 Tex.Crim. 379,242 S.W.2d 421
• Parties: CURRY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 421

242 S.W.2d 421

156 Tex.Crim. 379

CURRY v. STATE.

No. 25209.

Court of Criminal Appeals of Texas.

March 21, 1951.

On Rehearing May 9, 1951.

Rehearing Denied June 20, 1951.

Second Motion for Rehearing Denied Oct. 17, 1951.

William E. Davenport, San Angelo, Brooks, Duke, Templeton & Brooks, E. T. Brooks, Abilene, Justin A. Kever, San Angelo, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted of murder without malice and assessed a penalty of two years in the penitentiary.

The indictment in this cause is regular in form and the bills of exception cannot be appraised without a statement of facts. According to the transcript and the file mark of the district clerk on the statement of facts, this statement was not filed within the ninety days prescribed by law and for which period the trial court may extend the time for filing the statement of facts and bills of exception.

Appellant's attorneys have filed a motion asking this court to construe the filing date to be on December 15th, instead of January 9th. We are not empowered to hear evidence in such matters nor consider motions filed, unless there is admission of such facts as will justify the conclusion. The clerk of the district court has power to change his file mark if he has made a mistake; or a certificate from him that he had received the instrument within the proper time and had erroneously, thereafter, placed on it a different file date would be considered as an admission by the state. In such event we would be justified in receiving the statement of facts. In the state of the record, however, we are not permitted by law to consider the statement of facts in the case and cannot, for that reason, appraise the bills of exception.

The judgment of the trial court is, accordingly, affirmed.

On Motion for Rehearing

WOODLEY, Commissioner.

The statement of facts is shown to have been in the hands of the clerk of the trial court for filing on December 15, 1950, and the date of filing has been corrected by the clerk to read December 15, 1950, instead of January 9, 1951. The statement of facts will therefore be considered.

In the absence of an order signed by the trial judge and entered of record extending the time for such filing, appellant's bills of exception cannot be considered, they not having been filed within 30 days after the motion for new trial was overruled and notice of appeal given (on October 9, 1950). The term at which trial was had was a special term which began on August 11, 1950, and under the order calling such term would terminate on January 1, 1951 at 10 A.M.

The indictment charged that appellant voluntarily and with malice aforethought killed Buddy Bailey 'by pounding and beating the said Buddy Bailey's head against the pavement of the street.'

We overrule appellant's contention that such allegation is vague and indefinite, and hold that the indictment is sufficient to apprise the accused of the charge against him and to put him upon notice of what the state would offer to prove.

Appellant, an oil field worker and former prize fighter, testified that he came into San Angelo looking for a job and, after visiting other bars, came to the Concho Bar about midnight where he first encountered the deceased.

Appellant and one Eddie Lawton sat down at the booth where the deceased was seated and the deceased, resenting their presence, requested the waitress to ask them to leave, which she did. An argument ensued and soon thereafter appellant and the deceased went outside and began to fight.

Appellant testified that he told the deceased that he didn't want to fight him or have any trouble with him and walked out the door; that as he got outside the door the deceased remarked 'You are going to fight me, you cowardly son of a bitch,' and hit him on the chin pretty hard; that he got up and fought the deceased for some 30 seconds; that during the fight he told the deceased 'I am choking to death,' to which the deceased replied 'That is what I aim to do.'

Appellant testified further that someone in the crowd said 'Stomp him, kick him, Buddy;' that he then got loose, fought for about a minute and finally hit and dazed the deceased, then hit him again and knocked him 'off the curb down on to the car and down to the sidewalk.' According to appellant's testimony and that of his witnesses, this ended the fight.

The state's witnesses gave a quite different version of the affair.

W. W. Pike, President and Manager of a local taxicab company, testified:

'When I walked over there they were struggling on the sidewalk and they struggled against one of those meters and fell off the curb against the front of a car and then fell on the pavement, that would be down into the street, pavement. Then this man (indicating) got the other one and bumped his head against the pavement. Well, I don't remember just the exact number of times he did it, but several times. He bumped his head by just going up and down with it (indicating). I couldn't say at the present time whether he had a hold of the man's head or ear or head, or what, but he definitely had his head bumping it; and he was raising his head 6 or 8 inches every time and going back down with it; and I could hear his head when it hit the pavement. I'd say he was bumping his head hard on the pavement. Well, then somebody pulled the man off and he attempted to get back and they held him and stood across the one laying on the ground so nobody could get to him, but the man never did go back on him after they pulled him off. The man that they had pulled off attempted to get back but they held him there.'

'When they fell off the curb I wouldn't know who hit the car first, but the one that hit first fell on to the pavement and he didn't move any more; only when he was pumping his head.'

Webb, the operator of the Concho Bar, testified in part:

'Buddy Bailey put one arm around the parking meter, holding it, and he had this fellow (indicating) around the neck with the other, and the other fellow had his arm around Buddy Bailey's neck, and they remained in that position for a while, and then suddenly this larger fellow broke him loose and he fell against this car and he hit him, and when he did he plumped back over on his back on the sidewalk, and then this larger fellow jumped on him and got him by the hair of the head and jerked it up and down six or seven times, and then I realized that the man was being hurt bad. I jumped out in the crowd and a little short fellow by the name of Lawton and me pulled this larger fellow off Bailey and brought him back against he curb, and he kept trying to break away and wanted to get at him. He said, 'Turn me loose, I want to kill the son-of-a-bitch.' And we hung on to him.'

Clyde Parnell, a salesman, also testified that appellant pounded the deceased's head against the pavement several times.

Dr. G. F. Madding, a surgeon practicing at San Angelo, testified that the deceased died a few hours after he was admitted to the hospital, the cause of his death being 'some form of external trauma.' He testified:

'By 'trauma' I mean any form of external trauma that could have caused the injury which he had on the front of his body as well as on the back of his head. 'Ext...