Gauntt v. State
| Decision Date | 16 March 1960 |
| Docket Number | No. 31383,31383 |
| Citation | 335 S.W.2d 616,169 Tex.Crim. 520 |
| Parties | Donald GAUNTT, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Matthews, Aultman & Riley, by Ronald Aultman and Randell C. Riley, Fort Worth, for appellant.
Doug Crouch, Crim. Dist. Atty., A. D. Downer, Frank D. Coffey, Albert F. Fick, Jr., Asst. Criminal Dist. Attys., Fort Worth and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The offense is murder; the punishment, 99 years.
The State's evidence shows that on the date alleged, the deceased was shot and killed in a gun battle in which he and his companion, Johnny Green, were on one side and the appellant and his two companions, Garrett Ramsey and Leroy Gonzales, were on the other. The killing occurred around 2:30 P.M. in the 1900 Block of Arch Street in the City of Fort Worth. The testimony shows that shortly before the shooting the deceased and his companion went to the home of the deceased's mother in the deceased's automobile and after staying some thirty minutes they left. As the deceased backed out of the driveway and was driving away an automobile occupied by the appellant and his companions which was parked some distance down the street drove rapidly away from the curb and proceeded in the direction of the deceased's automobile. As the two cars collided near the center of the street the occupants of each car got out and all started shooting. In the shooting which ensued the deceased fired one shot and then turned and fled from the scene during which time he was being shot at by the appellant and his companions. Witnesses to the shooting testified that while in flight the deceased fell twice while running away from the appellant and his companions who continued to shoot at him. The evidence shows that the deceased finally fell on the porch of a nearby house and thereupon the appellant and his companions got in their automobile and drove away. Nine empty cartridges were found at the scene after the shooting and the deceased's gun was found near his body which contained five loaded shells and one which had been fired. A fully loaded sawed-off shotgun was also found in the automobile of the deceased. An autopsy performed upon the deceased's body disclosed two bullet wounds, one of which entered from the back and passed through the lung and was the cause of death. It was further shown that prior to the shooting the deceased had made threats to kill the appellant and on the night before the killing the deceased and his companion Green had attempted to ambush the appellant by shooting at him at a tavern. It was further shown that on the day of the killing the deceased was looking for the appellant to kill him because of a whipping he had received from the appellant some two weeks before.
Appellant did not testify but called witnesses who testified relative to threats made by the deceased to kill him which were communicated to appellant and who also testified that the deceased was the type of man who would carry out such a threat.
In submitting the issue of appellant's guilt to the jury the court charged the jury upon the appellant's right of self-defense against a deadly attack and in connection therewith fully instructed the jury with reference to the law of threats.
Appellant predicates his appeal upon certain formal bills of exception which we shall discuss in the order in which they are presented in appellant's brief.
By bills of exception Nos. 1 and 2 appellant complains of certain jury argument of State's counsel wherein appellant was referred to as a 'hoodlum' and 'gangster' to which he objected and his objection was by the court overruled. Under the facts such argument appears to have been warranted; hence no error is shown. Hay v. State, 155 Tex.Cr.R. 604, 237 S.W.2d 987. Complaint is also made to the recitation of a story to the jury by the prosecutor in which he stated he had read about a man catching a burglar in his house, shooting him twice, the last time when he was crouched down on his knees, and being tried for the offense and sentenced to a long term in the penitentiary. The bill certifies that appellant's objection was sustained to that part of the story about the man being tried and convicted and the jury instructed not to consider the same. Complaint is also made to the remarks of State's counsel when he stated 'Are we going to let Ft. Worth become another Chicago or another Kansas City?' and 'if you turn him loose--he used a pistol this time--The next time it will be machine guns.' As to this argument it is shown that appellant's objection was sustained and the jury instructed not to consider the same. The argument to which appellant's objection was sustained was not so prejudicial that its effect upon the jury could not be removed by the court's instruction and no reversible error is shown. See Weatherly v. State, 163 Tex.Cr.R. 659, 296 S.W.2d 764.
Bill of exception No. 3 relates to the court's action in permitting State's counsel, after pleading surprise to question the State's witness Johnny Green relative to certain statements made by him at appellant's examining trial. Upon being examined the witness admitted that the statements made by him were correct. Such procedure was approved by this court in Pelton v. State, Tex.Cr.App., 322 S.W.2d 529. Complaint is further made in the bill to the court's failure to instruct the jury that 'the State was bound by the testimony of its own witness unless and until it pleaded and proved surprise.' The matter of surprise was clearly a question for the court to pass upon and was not an issue for the jury's determination. No error is shown in the bill.
By bill of exception No. 5 appellant insists that the court erred in charging the jury on the law with respect to abandonment of the difficulty by the deceased, over his objection that there was no evidence that the deceased abandoned the difficulty and that the evidence only showed mutual combat and a change of positions to a more advantageous firing position by the deceased. The evidence from the standpoint of the State's witnesses clearly shows that when the shooting began the deceased fired one shot and then turned and ran. Appellant and his companions continued to shoot at the deceased as he was fleeing from the scene. No shots were fired by the deceased while in flight. Under such evidence the court did not err in submitting the issue of abandonment of the difficulty by the deceased to the jury. See 4 Branch's Ann.P.C. par. 2145, page 478 and cases there cited.
We overrule appellant's contention that bill of exception No. 6 presents reversible error because of the court's refusal to ...
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