Foster v. State, 39160

• Decision Date: 23 March 1966
• Docket Number: No. 39160,39160
• Citation: 400 S.W.2d 552
• Parties: Charlie Lee FOSTER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 552

400 S.W.2d 552

Charlie Lee FOSTER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 39160.

Court of Criminal Appeals of Texas.

March 23, 1966.

Elmer McVey, William S. Thornton, Bryan, for appellant.

D. Brooks Cofer, Jr., County Atty., William R. Vance, Asst. County Atty., Bryan, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The indictment charging appellant with the murder of Marion John Tremont was returned on March 25, 1965, at which time appellant was seventeen years of age.

The trial which resulted in the conviction of the appellant, with punishment assessed at confinement in the penitentiary for life, began on July 6, 1965 and judgment having been rendered on the jury's verdict and sentence pronounced, notice of appeal was given on August 4, 1965.

The offense for which appellant was tried and convicted was alleged and shown to have been committed on or about the 25th day of March, 1963, at which time the appellant was under 16 years of age.

The statement of facts reveals that the body of M. J. Tremont, the deceased, who had been reported missing, was found shortly after 9 A.M. on March 26, 1963, in a pasture just off of Wilcox Lane, in Brazos County, about 8 miles from Bryan. There was a cedar post lying across his body.

Appellant came to the Brazos County Jail about 7:10 o'clock the next morning and told Deputy Sheriff Fronterhouse that he was the one that had killed Mr. Tremont.

Sheriff Hamilton had visited the scene and had seen the body and a hat and other articles in the immediate area and had taken charge of the fence post. In response to Deputy Fronterhouse's call, he went to his office and talked to appellant who confessed to him that he killed Mr. Tremont.

Appellant's version of the facts and circumstances surrounding the killing is shown in the following testimony of Sheriff Hamilton:

'Q. What was the first thing that he told you, as best you recall?

'A. Well, he admitted to me this crime, this killing. He told me where Mr. Tremont had picked him up.

'Q. And where was that, sir?

'A. On 23rd and Sims, in Bryan. He then told me that where this happened was on out in the country, and he directed me every turn to the scene of this killing.

* * *

* * * 'Q. And what did he say happened there at Wilcox Lane where the body was discovered?

'A. He said they parked the car there, I believe he said they crawled over the gate, and went down to the edge of the woods, and he went on ahead, or got behind Mr. Tremont, one way or the other, and as he came by he fired at him with this pistol.

* * *

* * *

'Q. Now, Mr. Hamilton, did he tell you how he killed Mr. Tremont?

'A. He did.

'Q. Will you tell the jury what he told you?

'A. Yes, sir. He said after he had shot at him several times with the pistol, the pistol, he didn't think would shoot him, and Mr. Tremont had started running back toward the car, and he caught him just before he got to the fence where there is a gate there near, and picked up a cedar post and hit him with it. He said he remembered that he hit him two or three times. He said he might have hit him more, but he did remember hitting him 2 or 3 times, and then he straightened the body out and left.

'Q. Did he tell you what time of day that was?

'A. He said it was shortly after he picked him up.

'Q. And did he tell you he took Mr. Tremont's car keys?

'A. Yes, sir.

'Q. And did he tell you that he drove Mr. Tremont's car back to town?

'A. Yes, sir.

'Q. All right, did he tell you how he came back to town?

'A. Yes.

'Q. Tell the jury whether or not he told you he stopped at Nuche's Store, or a store on the way back?

'A. He told me he did and that he made a purchase there.

* * *

* * *

'Q. Did he tell you he made any purchases at any store downtown?

'A. He said he did at the Guarantee Store.

'Q. Did he tell you what money he used to make these purchases?

'A. He did. He told me he had taken Thirty Dollars off of Mr. Tremont's body, and that he had used part of this money to make these purchases with it.

* * *

* * *

'Q. After he made the purchases at the Guarantee Store did he tell you whether or not he drove around town in Mr. Tremont's car?

'A. Yes, sir, and he mentioned the fact that some boy hollered at him, and called this boy by name.

'Q. And did he tell you then what happened?

'A. Yes, sir, he said that he drove the car behind the compress there, and he hit a tree with it.'

On cross-examination, Sheriff Hamilton testified:

'Q. In the statement that the boy made to you, did he tell you the reason that he carried Mr. Tremont down to the pasture,--or the reason that Mr. Tremont had asked him to carry him down there?

'A. Yes, sir.

'Q. And what was that statement?

'A. He said he had talked to him about some girls.

'Q. And had he talked to him on several occasions about that same subject matter?

'A. He told me that when he approached Mr. Tremont he said, 'Do you remember me? I'm the one that you were talking with about some girls a year or so ago,' and that is the way that--it was just one other time that was mentioned by Charlie Lee.'

The Sheriff further testified that he found the pistol where appellant said he had thrown it, and found a billfold containing M. J. Tremont's driver's license and other you rember me? I'm the one result of what appellant told him.

Dr. Joseph Jachimczyk, who conducted the autopsy, described two distinct blunt lacerations over the left temporal and parietal areas of the scalp of the deceased and a broken neck, either of which, he testified, could have caused his death. He further testified that the cedar post could have caused such injuries.

Testifying in his own behalf, appellant admitted being present when Mr. Tremont was attacked and admitted that he confessed to killing him, but testified that the deceased told him that he had to get him a girl and he told him no; after he went into the pasture, as the deceased told him to, the deceased came over there and hit him on the arm; that he pulled out the pistol which was loaded with blank cartridges and fired it about five times. Then a truck drove up and a man came over the gate, picked up the cedar post and began beating Mr. Tremont. After he got through beating him, the stranger got Mr. Tremont's car keys and billfold and handed them to him (appellant) and told him to get in the car and go back to town and tell that he (appellant) did it or he would get him or kill his mother and daddy, and he did so through fear.

The jury rejected appellant's explanation of the killing and the evidence is sufficient to sustain their verdict.

The trial court did not err in admitting appellant's oral confession which led to the finding of the pistol, the billfold and its contents.

The fact that appellant was without counsel when he came to the Deputy Sheriff and confessed to him and to the Sheriff did not render his voluntary statement inadmissible. The portion of such confession made after his arrest was admissible under the portion of Art. 727 C.C.P. excepting from its provisions confessions in connection with which the defendant makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt. Riddle v. State, 150 Tex.Cr.R. 419, 201 S.W.2d 829; Angel v. State, 150 Tex.Cr.R. 183, 200 S.W.2d 169; Gage v. State, 159 Tex.Cr.R. 336, 263 S.W.2d 553.

Appellant's next complaint relates to the following incident which occurred during the cross-examination of Sheriff Hamilton when he was asked: 'Q. Did he tell you about Mr. Tremont bothering him about wanting him to get a colored girl to take her down there for sexual relations, did he tell you that?'

The statement of facts reflects:

'At this point in the proceedings the widow of the deceased, who was present as a spectator in the Courtroom, rose from her seat, and in a loud voice said: 'That's a lie. That's a lie. He was trying to protect his skin when he said that God damn liar.' The Court rapped for order, and asked Mrs. Tremont's son-in-law, who accompanied her, if he could control the situation. He assured the Court he could, and escorted Mrs. Tremont, who was subdued by this time, out of the Courtroom.'

The cross-examination then continued to its conclusion, at which time the trial judge instructed the jury to disregard the comments and statements of the wife of the deceased, and court was recessed for the day. The following day in the court's chambers appellant's counsel moved for mistrial because of the incident.

Assuming that the commplaint is properly before us, the court's failure to grant the belated motion for mistrial was not reversible error.

The record reveals that on March 27, 1963, after Mr. Tremont was killed, petition was filed in the Juvenile Court alleging that appellant was a delinquent child under the law having 'committed theft from a person,' and on April 1, 1963, he was found to be a delinquent child and committed to the care, custody and control of The Texas Youth Council in accordance with the provisions of Art. 5143d Vernon's Ann.Civ.St. He was confined in the Mountain View School at Gatesville, an agency of The Texas Youth Council, until after he was indicted for murder when a bench warrant was issued and he was returned to Bryan.

Appellant contended in his motion for new trial that he was denied due process of law in that the state waited a period of two years before charging him and bringing him to trial.

Point 3 of appellant's original brief reads in part:

'The Texas Constitution, under Art. 1, & 10, grants to an accused 'a speedy' public trial. This wording has been passed on many times when the question has been raised concerning what the term 'speedy' means. It is settled that it means no undue delay. Wood v. State, Tex.Cr.App. , 349 S.W.2d 605; Elliott v. State, Tex.Cr.App. , 324 S.W.2d 218; and others. It has been determined that a two month delay is permissible when the offense was committed two months before the defendant reached his 17th...