Ellisor v. State, 27645

• Citation: 162 Tex.Crim. 117,282 S.W.2d 393
• Decision Date: 22 June 1955
• Docket Number: No. 27645,27645
• Parties: Merle Wayne ELLISOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

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 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.

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.'

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 thereof, Officer Scarborough attempted to apprehend the appellant for reckless driving and was shot in the shoulder by the appellant, who then drove away in great haste toward the spot where he killed Crosby. Scarborough ough shot at the appellant as he fled.

We think that the evidence was clearly admissible as bearing on the intent with which the appellant fired at Crosby. He had just finished shooting Officer Scarborough and was fleeing from the scene when Crosby attempted to arrest him. We think that it is logically deducible from these facts that appellant shot Crosby in order to avoid being arrested for the Scarborough shooting or for the same reason that he shot at Scarborough.

A number of bills were reserved to the action of the court in permitting witnesses to testify and allowing a portion of the confession to be introduced, both of which showed that some two days before the homicide the appellant had burglarized a tourist court and had stolen the guns which he used to kill Officer Crosby and the money which was found on his person at the time he was apprehended. The fruits of the burglary were in the possession of the appellant at the time Officer Crosby gave chase; the appellant knew that they were stolen and that if Officer Crosby was successful in arresting him and found them he would probably be held accountable for their theft. We think that the evidence relating to the burglary was admissible on the issue of the appellant's intent at the time he shot Crosby.

Appellant relies upon the recent case of Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875. The decision in the Dempsey c...