Flewellen v. State

• Decision Date: 17 October 1917
• Docket Number: (No. 4455.)
• Citation: 204 S.W. 657
• Parties: FLEWELLEN v. STATE.
• Court: Texas Court of Criminal Appeals

204 S.W. 657

FLEWELLEN v. STATE.

(No. 4455.)

Court of Criminal Appeals of Texas.

October 17, 1917.

On Motion for Rehearing, January 23, 1918.

Dissenting Opinion, June 5, 1918.

Concurring Opinion, June 19, 1918.

Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.

Wilbur Flewellen was convicted of murder, and appeals. Affirmed.

Wilcox, Graves & Metcalfe, of Georgetown, A. S. Fisher, Jr., of Houston, and N. P. Woodward and W. W. Hair, both of Temple, for appellant. Sam D. Snodgrass, of Temple, and E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

About 10 o'clock in the night of May 19, 1916, appellant ran down and shot and killed Roy McKinley on the streets of Temple. The state contended, and the proof was amply sufficient to show, that Leon Wilson was a principal with appellant in the killing. Appellant was convicted of murder, with his punishment assessed at life imprisonment.

One trial was had in Bell county, which resulted in a mistrial — a hung jury. Later the district judge on his own motion, for ample grounds stated in his order, properly changed the venue to the criminal district court of Williamson county, where the trial occurred. The change of venue was clearly authorized under the statute (C. C. P. art. 626) and decisions thereunder. The trial court committed no error on this point as contended by appellant.

Appellant claimed to have been sexually intimate with a married woman, Mrs. Ileen Fehrenkamp, from time to time, or most of the time, for three years prior to the time he killed deceased. The day before he killed him he went to Waco to see said Wilson. He tried to get said woman to go with him. She refused. At the time she, with her sister, then Susie Haney, later Murrell, together lived with their parents in Temple. While he and Wilson were together in Waco they wanted said two women to come to Waco and meet them. In effect they agreed to phone them for that purpose. Wilson put in the call, and Susie answered. Wilson told her he wanted to talk to Ileen. Ileen refused to talk. Thereupon he talked to Susie and told her that he and appellant wanted them to come to Waco for said purpose. They refused. Appellant was present with Wilson when he did this talking, and when he failed to induce the women to meet them he called appellant to the phone, who continued the conversation with Susie in substance, urging the two women to come to them at Waco, as Wilson had done. They refused his solicitation. Appellant objected to said witness Susie Murrell testifying to the phone conversation she had with Wilson on this occasion. Her testimony was admissible. Practically, and under the circumstances in this case, it was the same as if appellant had carried on all of the phone conversation with Susie himself.

On said night said two women, Ileen with deceased, and Susie with Roy Murrell, whom she married three days later, in one company, attended a skating rink in Temple. The two couples so returning had gotten within about a block of the home of the women. Appellant and Wilson, each armed with a pistol, that night went from Waco to Temple in a jitney and found these women, with their escorts, said distance from their home. The women, with their escorts, were walking on the sidewalk, going home. As soon as appellant saw them he hurriedly got out of the automobile. As soon as they recognized him the women and their escorts ran from him. Appellant and Wilson followed them with their pistols. Appellant, while chasing them said to deceased, "Run, you son of a bitch." Another witness said he said, "Run, you sons of bitches." Appellant and Wilson both shot at deceased, Wilson at least twice and appellant at least five times, killing deceased. Appellant continued after Ileen, and caught her; and Wilson continued after Susie, and caught her. Over appellant's objection the court permitted Susie, in telling what occurred immediately after the killing, to tell what was said by Wilson to her and she to him at the time. All this testimony by her was clearly res gestæ of the killing and admissible, as was held by the trial judge.

The court committed no error in permitting Mrs. Fehrenkamp to testify that while forcibly taking her to Belton with him that night that several times during the night appellant said to her that Roy McKinley, or that "he," without calling deceased's name, shot first; that because she was scared and afraid not to say so to him that she answered his statement "Yes," but that, as a matter of fact, deceased did not shoot first; that appellant shot first. She swore deceased did not shoot at all. Any admission by appellant, as well as any testimony tending to show that he was trying to "fix" said witness to testify what was not true in his behalf, was admissible.

Some witness in describing deceased and telling who he was spoke of him as a boy, to which appellant made no objection. Appellant proved by Mr. Blum that deceased was "a very heavy kind of a man, about the same kind of man as Roy Murrell, probably heavier than Murrell, and maybe a little taller too." (Murrell was a witness and testified before the jury.) There was no reversible error in the court's permitting said Blum to testify, and later proving by Mrs. Hawks, that deceased was 19 to 21 years old. It was proved without objection that appellant was a man about 38 years old. Treadway v. State, 65 Tex. Cr. R. 222, 144 S. W. 655.

After the state closed its evidence the defendant himself testified. He next introduced W. S. Hunter, of Belton, who testified that he was 60 years old; had lived in Belton for 30 years; been a druggist there for 20 years, and was formerly editor of the Belton Journal; that he had known appellant since he was a boy, and that appellant lived in Belton most of that time; that he knew his father for many years. He swore:

"I am well acquainted with the defendant's reputation for truth and veracity in Belton, Tex., and it is good."

On cross-examination the state asked this witness:

"What about his (defendant's) reputation in Bell county as to whether he is a law-abiding citizen?"

Appellant objected to this question, and the court promptly sustained the objection. The question was not answered. Appellant had not up to this time placed his character in issue except for truth and veracity. Appellant then placed W. B. Smith on the stand, who testified that he was raised in Belton; was bookkeeper for an oil mill there and had been for years; that he had known defendant since he was a small boy. Appellant asked him:

"Are you acquainted with defendant's general reputation for truth and veracity in Bell county among those people who knew him?"

He answered:

"Yes. Q. Is it good or bad? A. It is good."

The state's attorney then asked him:

"Now, Mr. Smith, as I understand you, you are confining your testimony on the question of reputation as it affects his reputation for truth and veracity?"

Appellant objected to this question. The court overruled his objection. The witness did not answer that question, but the state then asked him this question:

"Are you confining your answer as to defendant's general reputation for truth and veracity in the community in which he lives?"

The witness answered, "Yes, sir." The appellant again objected to said question and answer, and the court overruled his objection. The court qualified the bill by stating that no written charge was presented by counsel for defendant instructing the jury to disregard the questions or the effect of the same. The state did not offer any testimony or ask any other question seeking to show appellant's reputation as to whether or not he was a law-abiding citizen. As contended by the state, the state did not then know, and could not have known, that appellant was not going to put his reputation in this respect in evidence. Nor do the questions, or either of them, indicate that the defendant's reputation in this respect was bad, nor that the witness would not have answered that his reputation in this respect was good. The bill in no way shows that what occurred was material or reversible error against appellant. Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Belcher v. State, 39 Tex. Cr. R. 123, 44 S. W. 1106; Phillips v. State, 59 Tex. Cr. R. 534, 128 S. W. 1100; Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 55 S. W. 55; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 167; Wyres v. State, 74 Tex. Cr. R. 32, 166 S. W. 1150; and other cases.

As stated, appellant killed deceased in Temple about 10 o'clock at night. He then captured said woman, Ileen Fehrenkamp, whom deceased was escorting at the time he was killed, and she swore against her will took her away from the scene to Belton, 9 miles distant, walking a considerable part of the way, trying to get a conveyance for himself and her from various persons on his route, and finally succeeding in getting a conveyance, and reached Belton with her about 5 o'clock the next morning. The court did not err in excluding the testimony by the officer, offered by him, to the effect that when he then surrendered to the officer he said to him, "I have shot a man in Temple; the man fired at me one time before I shot at him." This statement by him could not have been any part of the res gestæ, but was self-serving. 1 Branch's Ann. P. C. § 90, and authorities there cited.

The court did not err in excluding the proffered testimony of the witness Irvin to the effect that, while he and others were with appellant in San Antonio some four or five months before appellant killed deceased, that he told of an occurrence between said woman Ileen Fehrenkamp and one Bob Murrell which indicated that said woman on that occasion had been intimate with said Murrell, and that appellant "said nothing and did not express himself as being displeased...