Goode v. State

• Decision Date: 03 November 1909
• Citation: 123 S.W. 597
• Parties: GOODE v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W. 597

GOODE v. STATE.

Court of Criminal Appeals of Texas.

November 3, 1909.

Rehearing Denied December 22, 1909.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Pearl Goode was convicted of murder, and she appeals. Affirmed.

H. D. Wood, Harper, Jackson & Harper, W. M. Herring, and Tom M. Hamilton, for appellant. F. J. McCord, Asst. Atty. Gen., L. A. Johnson, Dist. Atty., Pat M. Neff, Co. Atty., and Tom Connally, for the State.

RAMSEY, J.

Appellant was indicted in the district court of Limestone county, charged with the murder of her husband, Tilden Goode. On application the venue was soon thereafter changed to McLennan county. The trial of the case began in the last-named county on October 27, 1908, and resulted in a verdict finding appellant guilty of murder in the second degree and assessing her punishment at confinement in the penitentiary for 25 years.

We deem it unnecessary to make a detailed statement of the facts. The evidence shows that appellant and Tilden Goode, her husband, were living on a rented farm near the village of Ben Hur in Limestone county at the date of his death, which occurred June 25, 1908, on the night of which day, between 10 and 11 o'clock, he was killed while lying in his bed, death resulting from a gunshot wound. One Ed Beard, who lived some 400 yards from the Goode place, was likewise a tenant of A. T. Derden, who owned both places or the place on which they both at the time resided. Living with appellant and her husband was one Joe Dorsey, a negro, who slept in a little side room partitioned off on the east end of the front gallery. It was the theory of the state that Mrs. Goode, appellant, and Ed Beard had been for some time criminally intimate, and that she manifested a fondness for and intimacy with Joe Dorsey, the negro, not in harmony with the conduct which should be expected from a white woman, and that the motive of the killing was the wish of appellant and Beard to free themselves of the presence of the deceased in order that they might enjoy each other's society unmolested and be freer to leave the country. There was considerable evidence aside from the confession of Mrs. Goode that this condition of affairs and this wish existed. It was the contention of appellant that Mrs. Goode was blameless in the matter, and they suggest that the killing was done by or through the procurement of one Dr. T. H. Beaird. A great number of questions are raised on the appeal, most of which are presented in an able and well-considered brief filed in appellant's behalf. We will discuss such of them as we think demand treatment and attention.

1. The first error assigned by appellant is the overruling of a motion made by her to compel state's counsel to deliver to her and her counsel what they termed a purported confession or declaration made by her touching the manner of her husband's death and her complicity therein. These confessions were on the trial introduced in evidence, and were in all respects executed and witnessed in accordance with the act of the Thirtieth Legislature (Laws 1907, p. 219, c. 118) touching this character of document. Appellant relies, in support of this motion, on the case of Jenkins v. State, 45 Tex. Cr. R. 173, 75 S. W. 312. We do not think that this confession was in any sense a public document, and therefore open to the inspection of appellant's counsel in advance of the trial. Articles 941 and 942 of the Code of Criminal Procedure of 1895 are as follows:

Article 941: "When a justice of the peace has good cause to believe that an offense has been, or is about to be committed against the laws of this state, he may summon and examine any witness or witnesses, in relation thereto; and if it shall appear from the statement of any witness or witnesses that an offense has been committed, the justice shall reduce said statements to writing, and cause the same to be sworn to by the witness or witnesses making the same, and thereupon such justice shall issue a warrant for the arrest of the offender, the same as if complaint had been made out and filed against each offender."

Article 942: "Witnesses summoned under the preceding article who shall refuse to appear and make a statement of facts under oath, shall be guilty of a contempt of court, and may be fined not exceeding one hundred dollars, and may be attached and imprisoned until they make such statement."

Such proceedings, it is held, are public documents, and on proper motion a defendant has the right to inspect and use it as evidence if he deems it necessary. These provisions of our Code of Criminal Procedure, however, have no reference to a confession such as was here sought to be examined. It was a part of the proceedings of the grand jury, and for that reason subject to the seal of secrecy until and unless offered as a criminating circumstance or testimony against appellant. Besides, if, in any event, this motion had any merit in respect to same, the error was cured by the fact that both confessions were in fact turned over to counsel for their examination. Again, it does not appear, nor does the motion recite, that either she or her counsel were ignorant of the nature of the confessions or the contents of the statements. Having given them presumably, she must have known the substance of their contents; and, having an opportunity to inspect them on the trial, with no suggestion or claim, as shown by the record, that improper limitations either as to time or opportunity were laid upon her or her counsel in respect thereto, it cannot, we think, be held that any error in respect to this matter was committed by which she could possibly have been prejudiced.

2. Again, appellant complains of the action of the court in overruling motion to quash the certified copy of the indictment served upon her and to suspend the trial until she could be served with a certified copy of the indictment against her, as by law provided. In approving the bill of exceptions touching this matter the court makes this statement: "The original indictment and the copy served on the defendant were identical in every particular, and at the time objection was made a careful comparison was made between the indictment and the copy, and no variance between them could be discovered, and defendant's counsel, after being requested by the court to point out the variance, if any, refused to do so." This is an unequivocal finding of fact, as we understand that there was no variance; and, the record so appearing, appellant is without any ground of complaint as to this matter. Again, we call attention to the fact that under article 617 of the Code of Criminal Procedure of 1895 it is doubtful if this motion in any event should have been sustained. This article is as follows: "An application for a change of venue may be heard and determined before either party has announced ready for trial, but in all cases before a change of venue is ordered, all motions to set aside the indictment and all special pleas and exceptions which are to be determined by the judge, and which have been filed, shall be disposed of by the court, and if overruled the plea of not guilty entered." In construing this article our court has more than once said that it was contemplated by the above article that all questions relating to the form of indictment and those not relating to the substance of the charge, which defendant may desire to make, must be heard by him before he makes his application for change of venue, and all that is left to be done thereafter in the court to which the case is removed is to try the issue joined upon a plea of not guilty, and pronounce judgment thereon according to law. Caldwell v. State, 41 Tex. 86; Loggins v. State, 8 Tex. App. 434; Barr v. State, 16 Tex. App. 333; Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792.

3. Complaint is also made of the refusal of the court to require the state to elect between the counts in the indictment before the evidence was closed. The rule is well settled that, where an indictment charges in separate counts one or more distinct felonies, and the evidence adduced develops distinct transactions, the state should, at the request of the defendant, be forced to elect upon which count or transaction it will prosecute. Such were the cases cited by appellant in McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795, and Blackwell v. State, 51 Tex. Cr. R. 24, 100 S. W. 774. This rule, however, has no application to a case like the one at bar, where only one criminal transaction or act is charged, and different counts are contained or inserted in the indictment drawn to meet the possible phases that the testimony may assume. The distinction is thus stated in the case of Moore v. State, 40 S. W. 287: "We understand the rule to be that the indictment can charge the same offense or transaction in any number of distinct counts, and in such case the state will not be driven to an election. If distinct offenses are charged in different counts in the same indictment, the state may be required to elect. See Pisano v. State, 34 Tex. Cr. R. 69, 29 S. W. 42. If the same transaction or offense is charged in different counts, each count alleging a different mode or means of doing the same act constituting the offense, the state will not be required ordinarily to elect." Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160. See, also, Parks v. State, 46 Tex. Cr. R. 100, 79 S. W. 303.

4. Appellant also assigns as error the refusal of the court to require the state to place Joe Dorsey, whom appellant alleged to be an eyewitness to the killing, on the stand. This motion alleges that Dorsey was an eye-witness to the killing, and the testimony of the state indicated clearly that he was a...