Gentry v. State, 34315

• Decision Date: 28 February 1962
• Docket Number: No. 34315,34315
• Citation: 172 Tex.Crim. 345,356 S.W.2d 793
• Parties: N. B. GENTRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 793

356 S.W.2d 793

172 Tex.Crim. 345

N. B. GENTRY, Appellant, v. The STATE of Texas, Appellee.

No. 34315.

Court of Criminal Appeals of Texas.

Feb. 28, 1962.

Rehearing Denied April 18, 1962.

Richard W. Davis, Glenn W. Lewis, San Angelo, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder; the punishment, 10 years in the penitentiary.

The State's testimony shows that on the day in question, as the witness, George Winham, was crossing the Oakes Street bridge over the Concho River in the city of San Angelo around 6:30 P.M. in his automobile, he saw two men standing on the bridge near the railing facing each other. The men appeared to be tussling and, as the witness passed, he observed one pushing the other and saw one of men go over the side of the bridge. The man remaining on the bridge, who was wearing a two tone coat and a felt snap-brim hat, then looked over the bridge railing and proceeded to walk fast from the bridge. The witness then drove to his home and reported the incident to the police.

The proof shows that in response to the call, the police went to the scene where the dead body of the deceased was recovered from the water near the bridge. The deceased, on such date, lacked only a few days of being seventy years of age. An autopsy performed upon the deceased by Dr. Raleigh Trotter, a pathologist, disclosed various bruises on the forehead, the right side of the chest and at the base of the neck, several broken ribs and a rupture of the blood vessel to the left of the breast bone where the collar bone connects and a considerable amount of hemorrhage extending downward into a space between the lungs and heart. The cause of death of the deceased was expressed by Dr. Trotter as severe trauma from the injuries, superimposed upon ill health which the deceased was suffering.

It was shown by the testimony that on the evening in question the appellant and the deceased had been together drinking beer in two cafes. Both were under the influence of intoxicating liquor. Around 6 P.M. they left the Coney Island Cafe togethr which was two blocks from the Oakes Street bridge. Forty minutes later appellant returned to the cafe and said to the witness Scott 'You think I ain't going to drown them all this morning, every son-of-a-bitch before morning, you just read the papers' and at the time stated he was going to chloroform Scott.

Around 10 P.M. the officers went to appellant's residence on North Oakes Street. At such time appellant was at home and accompanied the officers to the police station. When leaving the house appellant picked up a hat and coat and brought them to the police station. The hat and coat were introduced in evidence as exhibits by the State. Appellant, when wearing the hat and coat, was identified by the State's Witness Winham later that night at a police lineup and at the trial as looking like the man whom he saw on the bridge on the night in question.

Appellant did not testify but called Chief of Police Melvin James who testified that he observed appellant's hands on the night of his arrest and that they appeared to be normal.

The court submitted to the jury in his charge the issues of appellant's guilt of murder with malice and of aggravated assault. The issues of accident and cause of death were also submitted and the jury was instructed on the law relative to circumstantial evidence.

The jury by their verdict resolved the issues against appellant and we find the evidence sufficient to sustain their verdict.

Appellant predicates his appeal upon two main contentions.

He first contends that the court erred in admitting, over his timely objection, the testimony which showed that when appellant returned to the cafe on the evening in question he stated that he was going to drown 'every son-of-a-bitch before morning' and that he was going to chloroform the witness Scott. Appellant insists that the admission of such testimony was in violation of the rule that evidence of antecedent threats made by an accused is not admissible unless the threats were directed against the deceased or a class of persons which included him.

It is the State's contention that the testimony was admissible to show the condition of appellant's mind at the time of the killing and to show guilty knowledge on the part of appellant that he had just thrown someone in the river.

While the rule relied upon by appellant with reference to the admissibility of evidence of antecedent threats made by an accused is correct, such rule has no application in the present case to the statements made by appellant after the killing.

Art. 1257a, Vernon's Ann.P.C., provides in part as follows:

'In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.'

In 4 Branch's Ann.P.C., par. 2240, page 599, it is stated:

'The relevant declarations or statements of the defendant made before or after the homicide or difficulty in question, which are a part of the res gestae, or which show or tend to show motive, intention, state of mind, malice, premeditation, animus, or ill will toward the deceased, or which explain his purpose or refute his explanation, are admissible...