Dalrymple v. State

• Citation: 366 S.W.2d 576
• Decision Date: 27 February 1963
• Docket Number: No. 35392,35392
• Parties: Elvis E. DALRYMPLE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 576

366 S.W.2d 576

Elvis E. DALRYMPLE, Appellant, v. The STATE of Texas, Appellee.

No. 35392.

Court of Criminal Appeals of Texas.

Feb. 27, 1963.

Rehearing Denied April 17, 1963.

James H. Martin, Dallas, for appellant.

Alton R. Griffin, Dist. Atty., Lubbock, James R. Edwards, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., of Austin, for the State.

McDONALD, Judge.

Appellant was charged under a five count indictment with the offense of murder, the fifth count charging commission of the offense 'by some means unknown to the Grand Jury.' This was the count submitted to the jury which resulted in their verdict of guilty and the assessment of thirty years' confinement in the State penitentiary as punishment.

The State's principal or star witness was an accomplice by the name of Herman Talley. Almost one-half of the statement of facts reflects the testimony of this witness, Talley.

The careful trial judge fully charged the jury upon the testimony of an accomplice, pursuant to Article 718, Vernon's Ann.C.C.P., which provides:

'A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.'

Appellant's primary contention is that the State failed to corroborate the testimony of the accomplice witness sufficiently to sustain the verdict.

In studying the record to determine the sufficiency of the corroborating evidence, we are guided by the statement made by Presiding Judge Hawkins in the case of Story v. State, 153 Tex.Cr.R. 541, 221 S.W.2d 917, wherein he stated:

'The test as to the sufficiency of the corroboration, long recognized as correct by our court, is to eliminate from consideration the evidence of the accomplice witness, and then examine the evidence of the other witnesses with the view to ascertain if there be inculpatory evidence, that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is, the corroboration is sufficient, otherwise it is not.'

Viewing the evidence in this light, we shall narrate from the testimony of various State's witnesses in order to determine if it tends to inculpate the appellant with the commission of the offense. The first witness for the State, other than the accomplice, Talley, was Mrs. Charlie Biggs, who testified that she operated the Joy Motel at 814-34th Street in Lubbock. Mrs. Biggs testified that she rented Cabin No. 20 to two men on January 18, 1962, for a week, one of whom identified himself as J. L. Carpenter, and she identified one of them as the appellant. She related that she later took the license number, NC 5580, down on the register sheet; that the automobile was an Olds 88, metallic green; that the two men had rented Cabin 20 on Thursday and that the last time she saw the automobile was on Saturday, the 20th; that it was dark and she could not recognize the man that she saw but she noticed the car. The witness further related that she went out to Cabin No. 20 the next morning, Sunday, and saw the door had been kicked in and the lock lying over in the middle of the room and a bedspread, blanket, a pillow case and three towels missing. Mrs. Biggs stated that the occupants did not return and ask for any of their money back and that she had not seen the appellant since then until she 'came to court here today.'

The guest register from the motel was introduced by the State. It reflects that a J. L. Carpenter registered on 1/18 and the car license column of the register contained the number NC 5580 on the same line to the right of J. L. Carpenter's name.

Richard Tivis was the next State witness. His testimony reflects that he was the owner and operator of the Rendezvous Club; that he knew the appellant and saw him at his club on the night of January 20, 1962, with a boy and a girl; that the girl was June Dalrymple; that he saw Herman Talley 'setting at the table with them' (the appellant and this other man and this woman) part of the time; that he did not know the deceased--'I didn't recognize him by the picture that was in the paper'--that he had no acquaintance with him whatsoever.

Juanette Cheek next testified for the State, relating that she was cashier at the Rendezvous Club on Saturday night of January 20, 1962; that she saw J. R. Castle (the decedent); that he came into the club around 12:00 and that she did not charge him full price because it was so late; that she did not see him leave and she did not know who he left with.

Horace Cook was the next State witness. Mr. Cook testified that he worked at Paymaster Cotton Oil; that he was working the night shift from 12:00 at night until 8:00 in the morning, the Saturday night of January 20 and the early morning hours of the 21st of January; that Herman Talley and another man came up and asked him to take them to get some gas, 'they'd run out of gas'; that he did not know this other man but Herman introduced him as Jim Ed; that this was between 2:00 and 4:00; that he got the company pickup and took them to a service station and got the gas and then went back out on Loop 289 to the car; that it was a '54, '5 or '6 model Oldsmobile but he didn't pay much attention to it, but it was white over green, turquoise or blue, 'it was foggy that night'; that the gas was put in the car and that 'there was two people setting in the car'; that he did not know them, 'all I seen was the back of their heads'; that 'it was one male and one female'; that he did not see where the car went after he had put the gas in it and the car started; that he returned to the oil mill. This witness related that he was familiar with that area and that there is a caliche pit near there, just to the right of the car, 'it starts just, oh, in 50 yards of where they was parked, and it runs a good 300 yards from there.'

The State's next witness, Paul Kirk, testified that he was a plumber; that on the morning of January 21, 1962, he was out at the caliche pit to do some target practice at about one o'clock in the afternoon; that he discovered the body of the deceased; that it was clothed as follows: 'Oh, it had on one sock, I believe, and underwear and a sweat shirt,' the sweat shirt was red; that he saw no one else around the caliche pit; that he called the police and then awaited their arrival.

Patrolman Howard Hall of the Lubbock police department testified for the State, relating that he went to the caliche pit the afternoon of January 21 and met Paul Kirk there and remained there until an ambulance came; that he examined the 'person there in that pit' and that he 'later ascertained the name of the man--whose body that was' and that his name was J. R. Castle.

Dr. Richard Kepler, a State witness, testified that he was a pathologist; that he had examined the body and gave his opinion as to the cause of death. The doctor testified that he removed two pieces of metal from the right femur; that he also took a specimen of blood from the body and that he turned the blood over to the Department of Public Safety and turned the two pieces of metal over to the 'law officials who were present there.' It was the doctor's opinion that 'Mr. Castle basically died of shock due to mutiple traumatic injuries,' that the 'abrasions and contusions about the face were contributory factors.' He further testified: 'I believe exposure is a contributory factor. I believe the wound involving the femur of the leg that was fractured, from the foreign materials of the bullets is a contributory factor. I believe the entrance wound of the abdomen with the bleeding within the abdominal cavity was likewise a contributory factor. None of these things individually and of themselves would necessarily be a total cause of death, but all together in summation of the working together was the total cause of death.'

State's witness Raymond Waters, Captain of Company C, Texas Rangers, testified that as part of his investigation into the death of J. R. Castle on January 21, 1962, he went to Denver, Colorado, and there examined an automobile; that it was a 1957 Oldsmobile sedan, 'green or dark green car or blue, more of a green, I believe'; that the license number was NC 5580, Texas license plate, '61; that he made a search of the automobile and found various articles in it; that the 'windshield had a crack or a shattered place on the right-hand--close to the right-hand side of the windshield and it was splattered--and a pretty good spot there'; that the force that had shattered this place on the windshield had come from the inside; that he found a shirt in the trunk of the automobile. The shirt was admitted into evidence as a State's exhibit. It bore a white tape with lettering on it, 'E Dalylple'. The witness further testified that he found a bullet just under the front mat on the right-hand side in the floorboard of the car; that he examined the front and back seats of the automobile and saw stains on the seats. The witness was allowed to testify without objection: 'Yes, sir, there was blood stain on the front and back seat and I believe some on the back of the front seat,' in response...