Gray v. State

• Decision Date: 29 April 1925
• Docket Number: (No. 8860.)
• Citation: 272 S.W. 469
• Parties: GRAY v. STATE.
• Court: Texas Court of Criminal Appeals

272 S.W. 469

GRAY v. STATE.

(No. 8860.)

Court of Criminal Appeals of Texas.

April 29, 1925.

Rehearing Denied May 27, 1925.

Commissioners' Decision.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Sterling Gray was convicted of manslaughter, and he appeals. Affirmed.

John T. Buckley, of Longview, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BERRY, J.

Appellant was convicted in the district court of Kaufman county for the offense of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of four years. Deceased was the wife of appellant.

The testimony shows that appellant went to a house at night where his wife and step children were staying, and, on entering the room where his wife was, found her on the bed with another negro, called in the record "Mr. Whang." "Whang" immediately opened fire, and the deceased ran, and appellant grabbed the pistol out of "Mr. Whang's" hands, and, upon "Mr. Whang's" running appellant began shooting in the direction he and deceased had gone. Shortly after the shooting had ceased, appellant made the statement to his stepson that he got one of them, but he did not know which one it was. The next day the deceased was found a short distance from the scene of the shooting, in the cornfield. The testimony further shows that the deceased was shot in the back, and that her death was caused by this wound.

There are but two bills of exceptions in the record. Bill of exception No. 1 is in question and answer form, and, under article 846, Code of Criminal Procedure, we cannot consider same. Dunlap v. State, recently decided by this court and not yet reported. We have examined the testimony contained in said bill of exception No. 1, however, and are of the opinion that it shows no error, as it seems that the very question of which complaint is made in said bill was answered favorably to the defendant, and at least was not of sufficient importance to require a reversal, could the bill be considered.

Bill of exception No. 2 complains of the action of the court in refusing to charge on circumstantial evidence. It has often been held by this court that it is only when the inculpatory evidence is wholly circumstantial that an instruction as to that character of evidence is demanded, and it has also been the universal holding that proof that defendant admitted or confessed having killed the deceased is direct and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. Heard v. State, 24 Tex. App. 111, 5 S. W. 846; Smith v. State, 28 Tex. App. 315, 12 S. W. 1104; Guerrero v. State, 75 Tex. Cr. R. 558, 171 S. W. 733. It has also been held that, if the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Keith v. State, 50 Tex. Cr. R. 63, 94 S. W. 1044; Kidwell v. State, 35 Tex. Cr. R. 264, 33 S. W. 342.

Following the rules above announced, we conclude that there was no error in the court's action in failing to charge on circumstantial evidence in this case.

This disposes of appellant's assignments; and, finding no error in the record, it is our opinion that the case should in all things be affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The complaint of the refusal to continue a case cannot be reviewed, in the absence of a bill of exceptions. See Nelson v. State, 1 Tex. App. 41, and numerous earlier cases therein cited. Many subsequent cases are collated in Branch's Ann. Tex. P. C. § 304; also in Vernon's Texas Crim. Stat. vol. 2, p. 529, note 5. See, also, Jones v. State, 86 Tex. Cr. R. 261, 216 S. W. 183; Tippins v. State, 86 Tex. Cr. R. 205, 217 S. W. 380.

The complaint of the refusal to read to the jury the appellant's special charges cannot be sustained, for the reason that it is not shown that they were presented to the court before the argument, nor that their refusal was made the subject of exception. See C. C. P. arts. 737a and 743; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703, and precedents there cited.

The bills of exceptions composed of a transcription of the stenographer's notes in question and answer form are not shown to have been specifically authorized, are not in compliance with the statute (article 846, C. C. P.), and cannot be considered. Soderman v. State, 97 Tex. Cr. R. 23, 260 S. W. 607; Reese v. State, 94 Tex. Cr. R. 220, 249 S. W. 857; Jetty v. State, 90 Tex. Cr. R. 346, 235 S. W. 589, and many cases collated in the authorities cited.

The various matters of which complaint is made in the motion for new trial and which are stressed in the application for rehearing, with the exception of the one complaining of the refusal to charge on circumstantial evidence and that challenging the sufficiency of the evidence, are not properly here for review. The rulings of the court in receiving and in rejecting evidence, in order to be reviewed, must be preserved by bills of exception, and the motion for new trial cannot be regarded as a substitute. Article 744, C. C. P., Vernon's Tex. Crim. Stat. vol. 2, p. 536, note 20; Holloway v. State, 88 Tex. Cr. R. 126, 224 S. W. 1102; Begonia v. State, 88 Tex. Cr. R. 310, 226 S. W. 405; Reid v. State, 88 Tex. Cr. R. 364, 226 S. W. 408.

As we understand the statement of facts, before her marriage to the appellant the deceased had a son, Jesse McDavid, and the appellant had another stepson called McMurry Ramey. Some three weeks before her death the deceased and the two stepsons left the home of the appellant and went to Duke's ranch to work, and occupied a house with a woman named Gertrude. Will Jones, a negro man called "Whang," also lived at the house. According to the state's witness...