Davis v. State

• Decision Date: 02 April 1930
• Docket Number: No. 12834.,12834.
• Citation: 26 S.W.2d 649
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

26 S.W.2d 649

DAVIS v. STATE.

No. 12834.

Court of Criminal Appeals of Texas.

April 2, 1930.

Commissioners' Decision.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Thomas Davis was convicted of murder, and he appeals.

Reversed and remanded.

Grisham Bros. and W. B. Collie, all of Eastland, for appellant.

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

MARTIN, J.

Offense, murder; penalty, death.

Appellant was charged with the murder of A. L. Shook. The body of deceased, with that of his brother, Leon Shook, was found in a badly decomposed condition. Appellant and one Clyde Thompson were arrested. Appellant's confession was introduced in evidence. Its effect was to show that Clyde Thompson did the killing, robbery being the motive, and that appellant's presence at and participation in same was such as to make him a principal. The details of the crime are revolting and not necessary to repeat.

Defensive evidence was introduced tending to show that the confession of appellant was wrongfully obtained, and that his participation in the killing of the Shook boys was due to the duress of Clyde Thompson. It also defensively appears that appellant was seventeen years old and of subnormal mentality. The actual killing was shown to have been done with a pistol in the hands of Clyde Thompson. A shotgun had also been carried by Thompson, appellant, and his younger brother the night of the killing on a hunting expedition. It was shown that this shotgun was not available to any of the participants at the time of the killing.

Several bills of exception appear to the alleged improper argument of the prosecution. Among these we quote the following:

"While the prosecuting attorney, J. Frank Sparks, was closing his argument in behalf of the State, and at a time that the Defendant had no reply, he made the following arguments:

"`I tell you Gentlemen of the Jury, when A. L. Shook ran back toward that little ravine, he did not fall until this defendant, who had secreted himself at that place, shot the deceased in the back of the head with that double barrel shot gun and blew it off as the deceased ran by this defendant and while Clyde Thompson was pursuing him."

The indictment in this case alleged that the shooting was done with a pistol. The evidence for the state, as before stated, showed that the killing was done with a pistol in the hands of Clyde Thompson, and sufficiently showed appellant's participation in such crime as to justify an authorization of conviction of appellant as a principal, though deceased was shot by Thompson. The court nowhere submitted the theory that appellant did any shooting with a shotgun or that he in any manner by any direct physical violence personally administered, caused, or contributed to the death of deceased. Nor does there seem to be sufficient testimony in the record as would clearly support such theory if it had been submitted. The state bound itself to the theory, both by its pleading and proof, of a killing with a pistol, and the charge of the court correctly followed such theory, as before pointed out. It is shown that attorneys for the state vigorously contended in argument that appellant shot deceased with a shotgun from ambush and stated such to be a fact. The affidavits of jurors showed they took statements of this character as true, and some of them voted for the death penalty by reason thereof. The effect of the attorneys' statements as to this being a fact and their insistence upon a conviction for this reason amounted to an argument to the jury to disregard the court's instructions. The state under the record shown here was not entitled to a conviction upon any such theory. This record, beginning with the indictment and ending with the charge, presents an entirely different theory. The jury cannot be urged to disregard the court's instructions, particularly upon an hypothesis not shown to exist in the evidence. Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728; Brailaford v. State, 71 Tex. Cr. R. 113, 158 S. W. 541; Rodriquez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380. This was error.

Again, reference was made to matters by counsel for the state that were ruled out by the court as irrelevant and immaterial, and the inference was attempted apparently to be left with the jury that, if such matters had been...