Henderson v. State, 23487.

• Decision Date: 18 December 1946
• Docket Number: No. 23487.,23487.
• Citation: 198 S.W.2d 268
• Parties: HENDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 268

198 S.W.2d 268

HENDERSON v. STATE.

No. 23487.

Court of Criminal Appeals of Texas.

December 18, 1946.

Appeal from District Court, Grimes County; Max M. Rogers, Judge.

L. B. Henderson was convicted of murder, and he appeals.

Judgment affirmed.

Edwin N. Bell, of Navasota, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant, a negro man with a family, was charged with the murder of Nellie Greenwood, a negro school girl of the age of 16 years, and upon his trial he was awarded the death penalty. He appeals.

The facts produced show that on April 29, 1946, this girl left home in the morning to take the school bus to Navasota, and again took the bus in the afternoon for her ride home. She got off the bus at about 4:15 p.m. She had with her a brown jacket. She was next seen in the late afternoon in company with appellant, who had a shotgun in his hand and was walking along with the deceased in a southerly direction. Some 30 or 40 minutes thereafter a witness heard the report of a gun in the direction these parties had been going. On the next morning this girl's dead body was found some distance down the road where she was last seen walking, her face having been "shot off". She was examined by a physician who testified that her private parts gave evidence of having been lately penetrated and torn; and her jaw giving evidence of having been broken prior to the shot in the face, which produced instant death.

Appellant was arrested by the officers, and after questioning he was taken to where the body was found. He showed them where a pool of blood was located, it being covered with sand. He also showed the officers where the girl's jacket was. He further directed the officers to where the gun was and the empty shell also.

It was shown by a ballistic expert that the empty shell was fired from the right barrel of a .20-gauge double-barreled shotgun, the same one shown to the officers, and by analysis that appellant's trousers and the deceased's dress and torn clothing had a similar type "A" blood on them.

Appellant, when first approached relative to this girl's death, claimed that he saw her get into a car with a negro man. He described the man and car minutely but soon retracted this statement and directed the officers as above outlined.

Appellant took the witness stand on his trial and testified that as he was walking along with the girl, the gun being in his left hand, he changed it over to his right hand. The deceased asked him if it was loaded and he said, "No". She then hit the gun and it went off, and he immediately "took off." He strenuously denied that he raped the girl at any time or that he struck her, but finally went home, changed his bloody pants, and put the gun away where the sheriff got it. He claimed that he had the gun to hunt with.

The trial judge gave a comprehensive charge on murder with and without malice, as well as upon an accidental killing, and we find no objections thereto in the record.

We find a motion for a continuance in the record because of the inability of appellant's wife to be present at this trial because of the near approach of her expected confinement in childbirth. The matters expected to be proven by his wife, as shown in such motion, were that appellant, on the night of this alleged killing, "developed a sick headache and went...