Grimes v. State, 24532

• Decision Date: 07 December 1949
• Docket Number: No. 24532,24532
• Citation: 154 Tex.Crim. 199,225 S.W.2d 978
• Parties: GRIMES v. STATE.
• Court: Texas Court of Criminal Appeals

Page 978

225 S.W.2d 978

154 Tex.Crim. 199

GRIMES v. STATE.

No. 24532.

Court of Criminal Appeals of Texas.

Dec. 7, 1949.

Rehearing Denied Jan. 25, 1950.

P. H. Cauthan, Jr., Trinity, C. C. Chessher, Groveton, B. L. Collins, Lufkin, for appellant.

Joe J. Newman, County Attorney, Groveton, W. E. Barron, District Attorney, Navasota, R. C. Musslewhite, (Special prosecutor) Lufkin, George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged by indictment with shooting Philip Harrison with a gun, with malice aforethought, thereby killing him on or about June 24, 1948.

He was put upon his trial on April 13, 1949, and by the jury convicted and assessed a term of fifty years in the penitentiary. He appeals from a judgment herein and complains in eleven bills of exception of alleged errors of the trial court.

The facts herein are brief and show that on the day of the homicide, appellant and two men and a woman were in his station wagon; that they were driving around certain side roads near the line between Trinity and Angelina Counties; that they intended to headlight and hunt deer at nighttime; that they passed a beer tavern, evidently in Trinity County, and drove down a graveled road. Mr. Harrison (the deceased) was at such tavern, and appellant soon turned around and drove back to such tavern, where he purchased some beer and whisky; and deceased also made purchases of two cases of beer and some whisky. Appellant and his companions then drove away, and soon thereafter Mr. Harrison also drove away in the same direction, having at such time an opened bottle of beer on the seat beside him. When next heard of under the State's testimony, appellant and his wife, evidently some two hours thereafter, came into the office of the Sheriff of Angelina County, and appellant notified a deputy sheriff that he had killed a man, Philip Harrison, whereupon the deputy asked, 'What did you kill him for?' and appellant replied, 'Well, it's an old story, an old grudge, and it is a long story.' Appellant told the deputy where such killing took place, where he would find the body, and what he had done with the gun. The deputy then went to the scene as directed, and there found Mr. Harrison seated in his automobile, dead, with a wound near the region of the heart.

Appellant offered the testimony of two witnesses who were with him at the time of the shooting, and they testified to a conversation between appellant and the deceased, and to the theory of self-defense in the beginning of the altercation, and finally to an accidental shooting while engaged in a struggle over a .30-30 rifle belonging to appellant.

Bill of Exception No. 1 relates to the fact that a certain witness had seen appellant passing on a road near the house of the witness some three or four weeks prior to the homicide. This statement is not shown to have any materiality, and we do not think the error, if any, to be of any importance, and the bill is therefore overruled.

As heretofore stated, there are eleven bills of exception in the transcript. We will notice them in the order in which they are presented in appellant's brief.

Bill No. 4 relates to the testimony of Deputy Sheriff Knight of Angelina County relative to the fact that appellant, when asked why he killed Mr. Harrison, said that it was an old grudge, an old story; and he told Mr. Knight where the gun was located and where the body could be found. It seems that this was the first knowledge of the matter that the officer had, and by reason of this statement, he found the body of the deceased, and also obtained the gun from which the shot was fired, which was brought in by the brother-in-law of appellant. After satisfying himself, this officer placed appellant under arrest. We think all of this statement made to the deputy sheriff by appellant was admissible under Art. 727, C.C.P., such statement leading to the discovery of the body of the deceased, and also to the recovery of the weapon that caused the death. It is evident from the testimony that the deputy sheriff (Mr. Knight) knew nothing about this homicide, and that when appellant and his wife appeared at the sheriff's office and appellant announced that he had killed a man and that he wanted to be locked up, the officer did not immediately take him into custody because he 'wanted to make sure that he had killed somebody * * * to satisfy my mind, and then I would lock him up.' The deputy then questioned appellant as follows:

'Well, I asked him, 'What did you kill him for?' and he said, 'Well, it's an old story, an old grudge and it is a long story.' He said that Philip Harrison and his Daddy had tried to send him to the penitentiary once before. Yes, sir, he told me where he had killed Philip Harrison. No, sir, I had had no report of that shooting before that time from any other person. Yes, sir, he was the first man to report it to me. Yes, sir, he told me where Philip Harrison was. * * * I found Philip Harrison's body as a result of what the defendant told me there in that conversation with reference to why he killed Philip Harrison.'

We think the introduction of this testimony is governed by Art. 727, C.C.P., wherein it is said:

'* * * unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.'

It is also worthy of note that in this conversation with appellant, he stated that the gun with which the shooting took place was in possession of his brother-in-law, who later brought in the gun.

There are precedents which might be construed to hold that such a statement was res gestae, and therefore was paramount to Art. 727, C.C.P., and became admissible, although same was not made after a warning but while the accused was under arrest. See Gregory v. State, 50 Tex.Cr.R. 73, 94 S.W. 1041; and the recently decided case of Trollinger v. State, Tex.Cr.R., 219 S.W.2d 1018, which is asserted to be in point, as well as Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163; and Clark v. State, 84 Tex.Cr.R. 390, 207 S.W. 98. We do not think these cases to be in point. In the Clark case, supra, the sheriff had a warrant for the accused's arrest and questioned him after he had approached him for the purpose of effecting his arrest, and the statement testified to as coming from the accused in no wise conduced to establish his guilt, as set forth in the statute. The Lightfoot case, supra, is subject to the same objection.

In the Trollinger case, supra, the jailer knew that there had been trouble at the designated place and thought that Trollinger who was an officer, was bringing an accused to jail; and from the statement made by Trollinger, no new facts were communicated to the jailer save as to who had done the shooting, and no further fact that conduced to establish guilt, such as the finding of the instrument with which the offense was committed, and accused's statement was held to be inadmissible.

We express the opinion that the statement complained of herein was not res gestae because it was made from an hour and a half to two hours after the homicide had taken place, and after appellant had visited his father's home some miles away, and after he had disposed of his gun. We think the statement was admissible under Art. 727, C.C.P. See 18 Tex.Jur. p. 144, sec. 72; McClure v. State, 100 Tex.Cr.R. 545, 272 S.W. 157; McCurley v. State, 107 Tex.Cr.R. 425, 296 S.W. 559; Miller v. State, 125 Tex.Cr.R. 565, 68 S.W.2d 1036; Ramirez v. State, 135 Tex.Cr.R. 442, 125 S.W.2d 597; Snow v. State, 106 Tex.Cr.R. 222, 291 S.W. 558; Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831; Torrence v. State, 85 Tex.Cr.R. 310, 212 S.W. 957.

Complaint is next made because of the fact that the trial court permitted the State to introduce in evidence before the jury the door of Mr. Harrison's automobile showing certain holes therein which had evidently been repaired prior to the trial hereof. The main objection thereto seems to be that the door was not in the smae condition as it was in immediately after the shooting in that it had been repaired by the closing of such holes. We think the door itself would have been admissible on account of appellant's theory that he was falling when a shot was accidentally fired from his rifle; and the direction of the bullet through the outer door, a center metal portion thereof, the glass of the door, and the inner portion thereof, might have had some weight in determining the point or the direction from which the shot was fired. It was further shown that the place of the repair of the door was discernible and that the inner sheet of metal thereof was still unrepaired and a hole therein was present when exhibited at the trial. We think the door was admissible for what it may have been worth in the trial, its condition being sufficiently similar to the time when the shot was fired into the car.

Bill No. 7, complaining of the introduction of the door, was qualified by the trial judge as follows:

'Mrs. Ruth Harrison, the widow of Philip Harrison, testified that she and the deceased owned a 1947 Ford and that the door offered in evidence was the left side door of the car and that Mr. Kilpatrick who worked at the Ford place at Lufkin, took the door off the car on the morning of the trial. She testified that the door offered in evidence is the door that...