Golin v. State

• Decision Date: 27 January 1897
• Parties: GOLIN v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 794

GOLIN v. STATE.

Court of Criminal Appeals of Texas.

January 27, 1897.

Appeal from district court, Harris county; E. D. Cavin, Judge.

Frank Golin was convicted of murder in the first degree, and appeals. Reversed.

Jones & Garnett, Geo. E. Underwood, John A. Kirlicks, and J. A. Fagan, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary; hence this appeal.

The evidence introduced on the part of the state was circumstantial, and tended to show that the appellant, on the night of the 30th of May, 1895, assaulted and struck his wife, Sophia Golin, a number of blows with some character of instrument, inflicting wounds upon her from which she died within a few hours. The proof showed that the parties had been married about four years, and that the deceased was possessed of considerable property in her own right, mostly real estate, in and near the city of Houston, worth from ten to twenty thousand dollars. She was about 70 years of age, and the appellant was about 45 or 50 years old. The theory of the state was that the motive actuating the defendant in the homicide was gain; that is, to acquire and own the property of his deceased wife.

1. We do not believe the court erred in excluding the evidence of Quinn, offered by the appellant, to prove that the neighborhood where the deceased and the appellant lived, and where she was killed, was at that time "a lawless and tough place." There was no evidence tending to connect any one else, by circumstances, with the commission of the offense. Such evidence is only admissible in a case of circumstantial evidence, where, in connection with the proof offered, the circumstances tend to show that some other person may have done the killing (see Kunde v. State, 22 Tex. App. 65, 3 S. W. 325; Henry v. State [Tex. Cr. App.] 30 S. W. 802); or where there is some evidence pertinently tending to show some theory consistent with the defendant's innocence, or inconsistent with his guilt (see Murphy v. State [Tex. Cr. App.] 35 S. W. 174). In this case there was no such tangible theory presented with the excluded evidence, such as to render it admissible.

2. We do not believe the court erred in excluding the testimony of Pruitt as to the $600 or $800 in money held as a part of the estate of Sophia Golin. The mere fact that he held such money would not be significant, unless his testimony would show that said $600 or $800 was found by him on the premises of Sophia Golin. As we understand the explanation of the court, this money was found by another witness who was present, and the witness Pruitt knew nothing of the finding of said money on the premises of Sophia Golin, except by hearsay.

3. On the trial, the state introduced in evidence a certified copy of the will of Sophia Golin. The action of the court in connection therewith is indicated by the following bill of exceptions, to wit: "The state offered in evidence a certain paper writing, purporting to be a true and correct copy of the last will and testament of the deceased, Sophia Golin, certified as such copy, under the certificate and official seal of the clerk of the county court of Harris county, Texas, to wit, E. F. Dupree, as the same appeared on file in his office, of date the 9th day of April, 1895, and purporting to be signed by the deceased, Sophia Golin, in German, in and by which said instrument the said Sophia Golin purports to bequeath and devise to the defendant, Frank Golin, all and singular the property belonging to her, including two tracts of land or real estate situated in the county of Harris, in the state of Texas, and making the said defendant, Frank Golin, sole executor of said instrument, without bond or security. The said certified copy purports to be witnessed by Alfred Wisby and W. R. Day, and the original of which purports to have been filed on the 8th day of August, 1895, in the office of the clerk of Harris county, Texas. To the reading of which certified copy of said instrument the defendant at the time, in open court, objected, because: (a) There was no proof showing that said will had ever been executed in the manner and by the formalities required by law; (b) because there was no evidence that the deceased, Sophia Golin, had executed or made said written instrument or will; (c) because said certified copy of said instrument was not the best evidence of said will, or its purported execution, it not having been shown that said purported will was lost, mislaid, or destroyed, or was not in existence, or that it was in the possession of the defendant; (d) because said purported will had never been established as the last will and testament of the said Sophia Golin, by any witness who saw her sign it as a matter of fact, nor had the same been admitted to probate or proved as the last will and testament of the said Sophia Golin; (e) because the best evidence of the establishment and proof of said will was not said certified copy of the same, but would be the record of the proper court wherein said instruments are established, or a certified copy of the record of such proof and establishment of such purported will; (f) because said paper writing and purported certified copy of said pretended will had not been filed among the papers of the case of the state of Texas against Frank Golin, wherein it was offered and proposed to be used, for the period of time required by statute, and due notice thereof given to the defendant of the purpose upon the part of the state to use said purported certified copy of said will as evidence against him in said trial; (g) and because said certified copy of said purported will had not been filed among the papers of this cause, nor had any notice been given thereof to this defendant, and the same was read to the jury, over the objection of the defendant, before the same was filed among the papers of said cause; (h) because it was not shown before said instrument was introduced in evidence, or before or after, at any stage, of the trial, that the defendant had any knowledge of the execution of the will or of its contents. But all of defendant's said objections were by the court overruled, and the said paper writing or certified copy, as the substance of the same is set out hereinbefore, was read in full by the state to the jury, to which action of the court in overruling defendant's objections, and permitting the said certified copy of said purported will to be read in evidence, the defendant excepted."

It will be noted that the paper here offered and allowed in evidence was a writing purporting to be a true and correct copy of the last will, etc., of Sophia Golin, certified as such copy, under the certificate and official seal of the clerk of the county court of Harris county, Tex. As explained by the court, this was permitted, in connection with the testimony of Alfred Wisby and W. R. Day, who testified as to the execution of the said will; and we are referred to their testimony in the statement of facts. By referring to the testimony of W. R. Day, we ascertain that he saw the deceased sign said will; that he did not sign it in the presence of the deceased, but signed it afterwards, in the office of Wisby. Wisby testified that he wrote the will, and saw the deceased sign it as her will, and that he then signed it in her presence. The paper bears date April 9, 1895, and is a will in proper form, and gives and bequeaths to her husband, Frank Golin, the homestead tract of land, consisting of five acres, more or less; also, 48 acres, more or less, in the Austin survey, situated on the Montgomery Road, about 2½ miles from the courthouse, — both properties being in Harris county, — in fee simple, to be disposed of as he may wish. It also bequeaths to said Frank Golin the residue of the property of the testatrix, both real and personal, wherever it may be, and appoints him sole executor, without bond; and further provides that no other action should be had in the county court in relation to the settlement of said estate, except the probate and record of said will and return of an inventory and appraisement and list of claims. The will was filed August 8, 1895, by E. T. Dupree, clerk of county court of Harris county, by his deputy, Dixon. Attached to the certified copy of the will is a certificate of the county clerk of Harris county, to the effect "that the above and foregoing is a true and correct copy of the last will of Sophia Golin, deceased, as the same appears on file in my office." The certificate was dated September 17, 1895. It will be noted that there was no certificate of probate offered with this will.

Article 5352, Rev. St. 1895, provides: "Every such will, together with the probate thereof, shall be recorded by the clerk of the county court in a book to be kept for that purpose, and certified copies of such will and the probate of the same, or of the record thereof, may be recorded in other counties, and may be used in evidence as the original might be." Article 5351 provides: "All original wills, together with the probate thereof, shall be deposited in the office of the clerk of the county court of the county wherein the same shall have been probated, and shall there remain, except during such time as they may be removed to some other court, by proper process, for inspection." Article 2312 provides: "Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been or may be so recorded after being proven or acknowledged in the manner provided by the laws in force at the time of its registration shall be admitted as evidence without the necessity of proving its execution: provided, that the party who wishes to give it in evidence shall file the same among the papers of the suit in which he proposes to use it, at least three days before the...