Fawcett v. State

• Decision Date: 09 June 1948
• Docket Number: No. 24071.,24071.
• Citation: 213 S.W.2d 830
• Parties: FAWCETT v. STATE.
• Court: Texas Court of Criminal Appeals

213 S.W.2d 830

FAWCETT v. STATE.

No. 24071.

Court of Criminal Appeals of Texas.

June 9, 1948.

Rehearing Denied October 13, 1948.

Appeal from Criminal District Court, Jefferson County; Owen M. Lord, Judge.

Robert Lee Fawcett was convicted of murder with malice, and he appeals.

Reversed and cause remanded.

D. H. O'Fiel, of Beaumont, for appellant.

Jep S. Fuller, County Atty., and Ramie H. Griffin, Asst. County Atty., both of Beaumont, and Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the murder with malice of his wife, Velma Louise Fawcett, and awarded a term of 10 years in the penitentiary.

Appellant, a man 28 years of age and the father of three children by a former wife, married the deceased, then 15 years old, and lived with her while on shore, he being a sailor. After purchasing a small tract of land near Vidor in Orange County, appellant moved his wife and three children thereto. On the day on which the deceased was shot, appellant came into dock on his ship and visited his grandmother, Mrs. Elida Fawcett, in Beaumont. There he found his children and talked with them. They complained to him about their treatment at the hands of his wife. He then hired a taxicab and went to the place near Vidor and obtained some clothes and other things. Failing to find his wife at home, he returned to Beaumont and stopped at Jack's Tavern, where he found his wife in company with other women friends. He sat down across the table from her and ordered some beer. Prior thereto, he had gone to a pawnbroker's shop where he had pawned a .22 caliber pistol and redeemed the same. He placed the pistol and a bottle of whisky in a sack. While talking to his wife, the complaint of his children came up in the conversation, and she was questioned relative to her misconduct with other men, which she first denied but finally admitted, and accused him of similar acts with other women. She finally gave him the name of the man who was visiting her. The pistol, which was in his lap, was discharged, the bullet striking her in the lower abdomen and lacerating the bladder and other vital portions there located, from which wound she eventually died.

The issue was joined as to whether this shooting was accidental or purposely done by appellant.

It is evident from the record that appellant had made a written statement soon after the shooting, and that same was in possession of the State, but was not offered in the presentation of the State's case until after appellant had taken the stand and given his version of the fatal shooting of his wife. His testimony showed an accidental firing of the pistol in some manner that he was unable to explain. The State then offered in evidence the written statement made to B. O. Craft, Jr., an officer, which statement bore the statutory warning relative thereto as prescribed by Art. 727, C.C.P., and which seemed to be material in regard to the firing of this weapon. This statement was offered by the State after the defense had closed its testimony, and in a sense, same was in rebuttal. Nevertheless, it was also admissible as original testimony. This statement was introducible at any time if it appeared to be necessary to a due administration of justice. See Art. 643, C.C.P.

The case of Phillips v. State, 35 Tex.Cr. R. 480, 34 S.W. 272, relied upon by appellant as holding that when rebuttal testimony is introduced by the State, it was the duty of the trial court to limit such testimony to be used in rebuttal only, as contended by appellant, will bear a close scrutiny. In that case, there was an instrument in the nature of a confession, but same lacked the evidence of a necessary warning and was therefore not admissible as evidence. However, the accused took the witness stand and certain portions of that inadmissible statement were utilized in a cross-examination of the accused, and it was held by this court that the trial court should have instructed the jury that such admitted portions of this statement were admissible only as impeaching testimony. No such conditions are shown herein. Appellant's written statement appears to be admissible at any time, either as testimony in chief or in rebuttal. We also think that the case of Dowlen v. State, 144 Tex.Cr.R. 177, 161 S.W.2d 1067, is not in point. Furthermore, in that case, the impeaching testimony relating only to statements made by accused's alibi witnesses outside of the court as to his and their whereabouts at the time the alleged offense was said to have been committed could have been used for no other purpose than to impeach such witnesses, and it was therein held that the trial court should have limited such in his charge.

Bill of Exceptions No. 2 complains because the trial court allowed the introduction of the testimony of Miss Hazel Pluecker, an Assistant County Attorney, who handled the domestic relations cases in Jefferson County, in which she testified that Mrs. Elida Fawcett, the grandmother of appellant, had consulted her in the year 1946, wherein the grandmother was complaining of appellant's failure to support his three children; that she had also talked with L. I. Fawcett and W. L. Fawcett, uncles of the appellant, as well as other members of his family about eight months after the first conversation relative thereto....