Haley v. State

• Decision Date: 26 February 1919
• Docket Number: (No. 5270.)
• Citation: 209 S.W. 675
• Parties: HALEY v. STATE.
• Court: Texas Court of Criminal Appeals

209 S.W. 675

HALEY v. STATE.

(No. 5270.)

Court of Criminal Appeals of Texas.

February 26, 1919.

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

W. I. Haley was convicted of murder, and he appeals. Reversed and remanded.

Williams, Puckitt & Harty, of Dallas, and Martin & McDonald, of Austin, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

This conviction is for murder; the punishment being fixed at confinement in the penitentiary for 20 years.

The state's theory is that the deceased was assassinated. The evidence relied upon by the state is wholly circumstantial. The deceased resided in the country, and early in the morning a neighbor went to his house and found his body in his yard near the door of his garage. The body was cold and stiff and apparently the deceased had been dead six or eight hours. There were a number of buckshot wounds in his face and head. As a motive for the homicide the state advanced the theory, supported by the testimony of the wife of deceased, that she and appellant were criminally intimate; that she on the day preceding the homicide had told the appellant that their intimacy must cease, and he had declared his determination to have her.

There are a number of bills of exception complaining of the admission of evidence. These bills complain of the introduction of specific parts of the evidence, but are not so drawn as to disclose the relation of the facts to which they refer to other facts in the case, nor to negative their relevancy as links in a chain of circumstantial evidence when considered in connection with other circumstances. In a case depending upon circumstantial evidence it is necessary only to render it admissible that it tends to prove the issue, or constitutes a link in the chain of proof, and it is not to be rejected, though standing alone it might not justify a verdict. In such cases incidents may be legitimate evidence which would be deemed irrelevant in a case depending upon direct and positive testimony. Preston v. State, 8 Tex. App. 30; Washington v. State, 8 Tex. App. 377; Simms v. State, 10 Tex. App. 132; Langford v. State, 17 Tex. App. 445; Vernon's Crim. Stats. vol. 2, p. 595, note 18. Under these rules the bills show no error wherein complaint is made of the fact that a shotgun was found at appellant's place of business, and that subsequent to the homicide it bore evidence of recent discharge. Wharton on Homicide, p. 943; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847; Michie on Homicide, vol. 1, p. 821, § 170.

There was evidence that late in the evening preceding the homicide the deceased was in the village of Forney, at which the appellant lived, and near which the deceased lived; that about 9 o'clock the same night an automobile passed along the road near the scene of the homicide. There was evidence that appellant owned an automobile; that the tire on one side was smooth and on the other a Diamond tread. There were found on the ground a short distance from the scene of the homicide tracks made by an automobile with a smoth tire on one side and a Diamond tread tire on the other. There was evidence that on the same night that the homicide took place appellant was recognized driving his car. The imprint made by the Diamond tread tire on the mud near the scene of the homicide was preserved and introduced in evidence, and a plaster cast of the tire on appellant's car was also made and proof introduced that the tread on his car and the impression on the mud were identical in size and shape. The fact that it was possible that the track may have been made prior to the homicide, or that it might have been made by an automobile other than that of appellant, would, under the circumstances, relate to the weight of the testimony, but would not be legal ground for its rejection. Baines v. State, 43 Tex. Cr. R. 495, 66 S. W. 847; Doss v. State, 50 Tex. Cr. R. 49, 95 S. W. 1040; Rucker v. State, 51 Tex. Cr. R. 222, 101 S. W. 804; Liles v. State, 58 Tex. Cr. R. 310, 125 S. W. 921; Liles v. State, 62 Tex. Cr. R. 34, 135 S. W. 1177; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Michie on Homicide, vol. 1, p. 819, § 170 (41).

The bills of exception complaining of the identification of the car belonging to appellant present no error.

The complaint of the evidence that footprints were found in the vicinity of the homicide and that appellant's shoe was identified and compared with the tracks, is not well founded. Branch's Ann. P. C. p. 81; Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. Proof of tracks and other matters found at or near the scene of the homicide was legitimate. Michie on Homicide, p. 829, § 171 (1¾b); Tate v. State, 35 Tex. Cr. R. 231, 33 S. W. 121.

The trial court should have granted a new trial because of the remarks of the county attorney. Among other things, it appears from the bill he said, referring to counsel for appellant:

"You said the facts of this case point just as much to the guilt of these men, Terry McKeller and John McKeller, as Irvin Haley. The state has seen fit to put the two McKellers upon the witness stand to deny their guilt, but you did not put Mr. Haley upon the witness stand to deny his guilt."

There were other similar remarks not necessary to quote. Our statute (article 790, C. C. P.) provides:

"The failure of any defendant to testify" in his own behalf "shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."

A disregard of this command of the statute has been from the date of its passage uniformly held an imperative cause for reversal. Alvilla v. State, 32 Tex. Cr. R. 136, 22 S. W. 406; Vernon's Texas Crim. Stats. vol. 2, p. 716, note 29, and cases cited.

The conversations between appellant and Mrs. Williams detailed by her disclosing his illicit relations with her, his desire that she abandon her husband, her unwillingness to do so, his references to his freedom since the death of his wife, and other matters detailed in her testimony, were relevant and admissible in evidence. Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534; Rice v. State, 54 Tex. Cr. R. 149, 112 S. W. 299.

The state introduced evidence for the purpose of showing that some ten months prior to the homicide in question the appellant had killed his wife by administering poison to her. The admissibility of this testimony is challenged upon various grounds. The manner in which this is presented in the bill of exceptions renders it difficult to grasp entirely appellant's viewpoint, but in view of another trial we express such views as we have formed touching its relation to the case. The evidence showed that appellant's wife died at night. He called a physician and her stepmother, who arrived after her death. According to their statement appellant and his wife came in from a drive; that his wife had been taking some aspirin for neuralgia which she had; that they went to bed, and later she told him to bring her that dose of quinine she got that evening in capsules; that he gave it to her, and after taking it she went to sleep and dozed off, and later she woke him up saying she was feeling bad; that she said she did not need a doctor, she would be all right, but that she had a convulsion, and he phoned for a doctor, and that she died in his arms. The doctor said he did not remember that the appellant told him how long his wife lived after she complained; that she woke up suddenly and grabbed him; that he had given her some...