Gragg v. State, 23955.

• Decision Date: 12 May 1948
• Docket Number: No. 23955.,23955.
• Citation: 214 S.W.2d 292
• Parties: GRAGG v. STATE.
• Court: Texas Court of Criminal Appeals

214 S.W.2d 292

GRAGG v. STATE.

No. 23955.

Court of Criminal Appeals of Texas.

May 12, 1948.

Rehearing Denied November 3, 1948.

Appeal from District Court, Collin County; W. C. Dowdy, Judge.

Chesley Arthur Gragg was convicted of murder, and he appeals.

Affirmed.

See also 191 S.W.2d 32.

G. Ray Lee, of Dallas, J. W. McCullough, of McKinney, and A. S. Baskett, of Dallas, for appellant.

Ernest S. Goens, State's Atty., of Austin, Jimmy MacNicoll, Will R. Wilson, Jr., Dist. Atty., and Henry Wade and George P. Blackburn, Asst. Dist. Attys., all of Dallas, and Paul Worden, Criminal Dist. Atty., of McKinney, for the State.

BEAUCHAMP, Judge.

Appellant was convicted of murder and sentenced to life imprisonment in the penitentiary. The case originated in Dallas County and was transferred to Collin County for trial.

We are asked to reverse the case and our attention is directed principally to the contention that the evidence is insufficient to warrant a conviction for three reasons: First, it is contended that in as much as the indictment alleges that "the manner and means of effecting said drowning being to the grand jury unknown," it was incumbent upon the State to show that the grand jury used due diligence and was unable to ascertain the manner and means used. Second, the State introduced some five or six statements made by appellant soon after the commission of the alleged offense in in which he made exculpatory statements completely exonerating himself from any blame. It is presented that the State is bound by such evidence because it did not show the falsity of these statements. The other, and third contention, which calls for consideration of all of the evidence in the case, is that the State failed to prove the corpus delicti. The questions will be considered in the order stated.

The indictment in this case is drawn following the suggestion in the opinion on a former appeal, which reversed the case and held the indictment insufficient, from which we quote (148 Tex.Cr.R. 267, 186 S.W.2d 243, at page 247) as follows:

"We agree with the State in its position that in ordinary understanding the averment that deceased was `drowned' means that she was drowned in water. But to our mind the defect in the indictment does not occur at that point. It is not necessary to cite authorities upon the proposition that in an indictment for murder the means of death, if known, must be averred; if by shooting, that it was with a gun, if by cutting or stabbing or beating, the instrument with which it was done. So in the present case there should be an averment of some overt act of the accused which brought about the drowning of his wife, if such act is known. To illustrate, that he pushed her from the bank into the water, or that he pushed her out of a boat into the water, or held her head under the water. If the exact means employed to effect the drowning is not ascertainable the State may always protect itself by an averment that the means and manner of effecting the drowning is unknown to the grand jury."

The indictment complies with the law and is sufficient. The further proposition presented thereon, that it was incumbent upon the State to show that the manner and means used were not known to the grand jury is sound. Due diligence in presenting the case to the court would suggest that such fact be proven by some member of the grand jury, or one in position to know what took place. This procedure is recommended. It was not done, as shown by the record. It is the consistent holding, however, that when all of the facts and circumstances of a case clearly show that the grand jury did not know the manner and means used the law is thereby complied with. McNiel v. State, 131 Tex.Cr. R. 553, 100 S.W.2d 365; Moree v. State, 147 Tex.Cr.R. 564, 183 S.W.2d 166; Texas Jur. Vol. 22, p. 622, Sec. 123.

From all of the circumstances of the case, hereinafter detailed, it is perfectly apparent that no one was present when the drowning took place except appellant himself. His own testimony reveals that fact. There is nothing in his statement to lead them to investigate further. He denied that he used any means. This was known to the prosecution at the time of the indictment.

Appellant has presented with much insistence that the State had introduced some five or six witnesses who testified to statements made by appellant soon after the drowning which, if true, would show that the death of his wife was accidental and no fault of his. Having introduced this evidence the State is bound by the exculpatory statements contained therein unless it succeeds in proving the falsity of them. This it may do by direct testimony or it may be shown to the satisfaction of the jury by all of the facts and circumstances of the case. The question then may be discussed under the proposition that the evidence was insufficient to show the corpus delicti. If it is sufficient then the exculpatory statements may be thereby contradicted. If not, the State's case must fall on both propositions.

This conviction rests exclusively on circumstantial evidence. Appellant had married Flora Gragg, a widow who had one son named Brady Lynn Blassengame, about ten years of age. During the marriage and prior to the drowning, appellant had served some time in the army. After returning to Dallas he was employed in a manufacturing plant. According to the State's theory, he became enamored of a young girl named Ann White, from Titus County, Texas, who was working at another plant in or near the city. They lived together in adulterous relations for some days. The girl feared herself to be pregnant and, in agreement with appellant, she returned to to her home from which she and appellant carried on a spirited and salacious correspondence. Some twelve or more letters from her and thirty-two from appellant were introduced in evidence. These letters gave evidence of a plan which would culminate in their marriage. At the first trial of the case Ann White appeared as a witness in behalf of the State. She identified the letters and testified as to conduct between her and the appellant, leading up to and after the death of his wife. Subsequently she married a brother of appellant and came into court at this time and testified in behalf of the defendant. She claimed she had been forced to give the testimony at the former trial. She corroborated appellant and her husband in their evidence to the effect that the letters were written by appellant but for his brother, whom she later married, who could not read or write. This evidence will not be discussed further than to say that much of it is contradictory of the wording in the letters themselves, and contrary to the circumstances surrounding the two brothers. The jury did not believe it. Counsel representing appellant have not asked this Court, either by brief or oral argument, to give force to it.

Prior to the drowning and during the time that appellant and Ann White were engaged in their correspondence, Flora Gragg had pending in the court a suit for divorce against appellant. The correspondence made reference to a suit — which the State contends was this divorce suit. Shortly prior to the drowning appellant went to the attorney representing his wife and demanded that he dismiss the divorce suit, which was done. It is further shown by the evidence that life insurance policies had been taken on the wife and her son in favor of appellant. After their death he proceeded with the collection of these policies. There was some property, consisting of a house, an automobile, and other personal property the nature and extent of which is not fully shown. The letters from appellant to Ann White at least made indirect reference to this property and to money, which the State infers was the proceeds of the insurance policies.

With this background, it was shown that he went with his wife and step-son to a lake or tank by the side of the road, in the outskirts of the city, to fish; that after being there several hours he went to a package store, at about eleven o'clock at night, to make a call for assistance, stating that his wife and son had drowned. At this time he told the proprietor of the store that they were fishing on the bank and the boy slipped into the water and the wife jumped after him. He said he was thirty or forty yards away in a boat. Officers were called to the scene and appellant, who was not arrested for some days thereafter, made several statements to different parties including the sheriff and, while in each he exonerated himself by exculpatory statement, they were in a material way inconsistent. Other statements placed all of the parties in the boat at the time the boy fell in the water and the wife jumped after him. When the bodies were recovered they were a considerable distance from the bank. For several hours prior to the alarm which he gave, two officers were parked under a bridge nearby and watched a man paddling about aimlessly alone in a boat. They left at 10:30, about thirty minutes before he gave the alarm. Their evidence directly and positively contradicts his statement that the three of them were in the boat during such time. Soon after the arrival of the officers the bodies were recovered and they were found to be rigid, indicating that they had been drowned something like three hours prior thereto. This also contradicts the exculpatory...