Fowler v. State

• Decision Date: 29 April 1964
• Docket Number: No. 36781,36781
• Citation: 379 S.W.2d 345
• Parties: Borden Franklin FOWLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 345

379 S.W.2d 345

Borden Franklin FOWLER, Appellant, v. The STATE of Texas, Appellee.

No. 36781.

Court of Criminal Appeals of Texas.

April 29, 1964.

Rehearing Denied June 10, 1964.

Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Roy B. Johnson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

The offense is failure to stop and render aid; the punishment, one year in jail and a fine of $1,000.00.

The testimony of Lorine Jones, the injured party, and witness for the state reflects that she was a passenger in a 1959 Dodge automobile belonging to Rufus J. Wallingsford, her brother-in-law. A collision occurred at the intersection of 19th and Texas in Lubbock, Texas. The car in which the injured party was riding was struck on the right-hand side from the door up toward the hood. Mrs. Jones was in a daze immediately following the accident and came to, or waked up, in the hospital where she remained five or six days. She had sustained injuries to her side and head, but no bones had been broken. The injured party further testified that she was treated by Dr. Bridwell and that she wears glasses now but did not prior to the accident in question.

Rufus Wallingsford testified that he was driving the 1959 Dodge with Lorine Jones as a passenger when the accident occurred; that the car that struck him was a De Soto, probably a '54 or '55, grayish in color, with a De Soto emblem on the back. Witness Wallingsford further testified that the car that struck them did not stop but went on by and he could not see who was driving as it was dark. On cross-examination he (Wallingsford) testified that he did not know the license number of the model of the De Soto which struck him and that Mrs. Jones complained of her back and hip, was in pain and shock, but was not unconscious after the accident.

James Edward Jones, the 14 year old son of the injured party, was an occupant of the Dodge when the accident occurred. His testimony concerning the accident coincided with that of Lorine Jones and Rufus Wallingsford. He testified that he thought the car which struck them was a De Soto and that it did not stop to see if anyone was injured or take his mother to the hospital.

Lonnie Foote, a police officer for the city of Lubbock, testified that he was called to investigate the accident and upon arriving, only one car was present at the scene, it having damage on the right front side up toward the front.

Upon an investigation of the accident, a up toward the front. '53 green De Soto was found in the 2800 block of Avenue H in a parking lot, some 10 blocks from the scene of the accident. Three men were seen by the De Soto, one being the appellant, trying to pull the left front fender off the wheel, using a board.

Through Officer Foote's testimony we see that he located appellant's car some 25 minutes after the accident occurred. When Officer Foote walked up to appellant's car, appellant stated: 'We are trying to get the fender pulled out so we can go back to the scene of the wreck.' Officer Foote then asked who owned the car and who was driving it to which appellant stated that it was his car and he was driving it.

It should be noted at this point that the testimony of Officer Foote concerning appellant's statement that he (appellant) was the driver and owner of the De Soto was objected to as inadmissible both as not being part of the res gestae and also as a statement made after appellant was under arrest.

It was stipulated that Lorine Jones was a passenger in the automobile in question and was injured and if a doctor were called, he would testify to her injuries.

Appellant contends that the above evidence is insufficient to support the verdict of the jury. In discussing this question we must first consider whether the testimony of Officer Foote, concerning statements made by appellant to the effect that it was his car and he was driving it, was admissible.

It is well settled that no single rigid principle governs the admissibility of evidence as res gestae. 24 Tex.Jur., Sec. 581. To be admissible as res gestae, statements or declarations must be substantially contemporaneous with the principal fact or transaction although they need not be precisely contemporaneous with it. 24 Tex.Jur. 585. The time element, however, is not the controlling factor insofar as admissibility of the evidence is concerned. The controlling factor being spontaneity or whether the statement made was instinctive. In other words, the statement or declaration must have been made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.

In Phillips v. State, 137 Tex.Cr.R. 206, 128 S.W.2d 393, appellant shot the deceased and walked several blocks to the Sheriff's Office where she stated that she had come to give herself up and that she, 'shot Charley'. She went on to tell about a quarrel and the subsequent shooting. The statements were held to be admissible notwith-standing the fact the she was probably under arrest.

In Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110, when the arresting officer arrived at the scene of the accident, appellant was seated in his automobile. Appellant, at the officer's request, produced his drivers license. While the officer was questioning the owner of the panel truck, appella...