Ellisor v. State, No. 27645

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON; DAVIDSON
Citation162 Tex.Crim. 117,282 S.W.2d 393
Docket NumberNo. 27645
Decision Date22 June 1955
PartiesMerle Wayne ELLISOR, Appellant, v. The STATE of Texas, Appellee.

Page 393

282 S.W.2d 393
162 Tex.Crim. 117
Merle Wayne ELLISOR, Appellant,
v.
The STATE of Texas, Appellee.
No. 27645.
Court of Criminal Appeals of Texas.
June 22, 1955.

Chap. B. Cain, C. C. Chessher, Liberty, Joe J. Newman, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady, Asst. Dist. Atty., Thomas D. White, Asst. Dist. Atty., Houston, Leon Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

There is no conflict in the evidence except as to the sanity of the accused. In view of this, the State's evidence will be summarized. The appellant, who had only a short time before the homicide been released from the Texas Prison System and who had just shot Deputy Sheriff Scarborough, shot and killed Officer Crosby, a member of the Highway Patrol as Crosby attempted [162 Tex.Crim. 118] to apprehend him for speeding. Appellant's confession was admitted, and no evidence was introduced tending to show that it was involuntary. The appellant did not testify, and the sole defense was that of insanity. There were expert and lay witnesses on the question of sanity for the State and for the appellant, and the jury resolved the conflict in such testimony.

The facts will be stated more fully in a discussion of the bills of exception which are advanced in the brief and argument of appellant's able attorney.

Formal bills Nos. 3 and 4 and informal bill No. 19 relate to refusal of the court to allow the appellant to withdraw his announcement of ready when each of three witnesses for the State was called in development of the State's case in chief. The bills as qualified reflect that prior to the trial the appellant filed a motion to require the State to furnish appellant's counsel with a list of the witnesses, but the appellant secured no ruling from the court on such motion. At the time such motion was filed, the attorney representing the State delivered to appellant's counsel a list of 38 names as State's witnesses, but the names of neither of the three witnesses in question was on such list. When each of the three witnesses was called to testify, the appellant plead surprise and asked to withdraw his announcement, which request was denied.

In discussing the question here presented, it is important to bear in mind the statement of the case contained in the second paragraph of this opinion and the nature of the testimony of the witnesses in question.

The witness Phillips testified that he had prepared certain plats and drawings of the scene of the homicide.

The witness Palermo testified that he found a pistol near the scene of the homicide and delivered it to a policeman.

Page 395

Officer Higgins testified that Palermo delivered the pistol to him.

Officer Crosby was killed by volleys from a shotgun and a rifle, both of which were found at the scene of the homicide. Appellant's confession recites that as he was escaping from the scene he 'discovered that I still had the pistol in my belt. I decided it best to get rid of the pistol so I threw it away.'

[162 Tex.Crim. 119] The State's case was complete without the testimony of these three witnesses, and they did not testify as to any controverted issue. In view of the failure of the appellant to press for a ruling on his motion, we would not be inclined to reverse a conviction unless the appellant was able to show injury. We see no possibility of injury or surprise to the appellant here. We note that all the cases which discuss Article 392, V.A.C.C.P., hold that the provision concerning the endorsement of witnesses on the indictment is directory and not mandatory.

Formal bill No. 5 relates to the testimony of Officer Scarborough. The appellant's objection was that it constituted proof of an extraneous offense. A few minutes prior to the homicide herein charged and approximately one mile from the scene...

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24 practice notes
  • State v. Prieur, No. 52365
    • United States
    • Supreme Court of Louisiana
    • February 19, 1973
    ...such things as intent, Nye & Nisson v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • United States v. Knohl, No. 340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 1967
    ...such things as intent, Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70, Nos. 68
    • United States
    • United States Supreme Court
    • January 23, 1967
    ...such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Hathorne v. State, No. 42871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1970
    ...such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Request a trial to view additional results
24 cases
  • United States v. Knohl, No. 340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 1967
    ...such things as intent, Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70, Nos. 68
    • United States
    • United States Supreme Court
    • January 23, 1967
    ...such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • State v. Prieur, No. 52365
    • United States
    • Supreme Court of Louisiana
    • February 19, 1973
    ...such things as intent, Nye & Nisson v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919, Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Hathorne v. State, No. 42871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1970
    ...such things as intent. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919; Ellisor v. State, 162 Tex.Cr.R. 117, 282 S.W.2d 393; an element in the crime, Doyle v. State, 59 Tex.Cr.R. 39, 126 S.W. 1131; identity, Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; malice......
  • Request a trial to view additional results

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