Hill v. State

• Decision Date: 19 February 1941
• Docket Number: No. 21323.,21323.
• Citation: 149 S.W.2d 93
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

149 S.W.2d 93

HILL v. STATE.

No. 21323.

Court of Criminal Appeals of Texas.

February 19, 1941.

Commissioners' Decision.

Appeal from District Court, Panola County; T. O. Davis, Judge.

Luther Hill was convicted of murder, and he appeals.

Reversed and remanded.

Fred Whitaker, of Carthage, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Nellie Mae Hill by throwing the said Nellie Mae Hill down, pouring gasoline on her and setting her afire.

The state introduced in evidence appellant's confession in which he admitted that he had burned the deceased to death by pouring gasoline on her and setting her afire. The dying declaration of deceased introduced in evidence corroborated appellant's confession. Testifying in his own behalf, appellant repudiated the confession. It was his version that he accidentally ignited gasoline which had been poured on deceased. He disclaimed any intention of killing her.

The fragments of burned clothing of the deceased were brought into the courtroom in a sack and placed on the counsel table within ten feet of the jury. They bore the odor of gasoline. Some of the fragments of clothing were taken out of the sack, identified by a witness and introduced in evidence. The clothing did not serve to elucidate or illustrate any point or solve any disputed question. It was uncontroverted that gasoline had been poured on the deceased, that such gasoline had been ignited, and that she received severe burns. In short, there was no question as to the condition or extent of the burns nor as to how they were inflicted. Proper objection was interposed by counsel for appellant at the time the fragments of clothing were introduced. The opinion is expressed that the bill of exception reflects reversible error. A similar question was involved in Huntsman v. State, 95 Tex.Cr.R. 460, 254 S.W. 1108, in which the conviction was for an aggravated assault. It is shown in that case that the state introduced in evidence, over Huntsman's objection, the bloody clothing worn by the injured party. In concluding that reversible error had been committed, this court, speaking through Judge Hawkins, used language as follows:

"The state introduced in evidence over objection the bloody hat, bloody shirt, and bloody overalls worn by the assaulted party. Objection was urged on the grounds: (a) That the clothing did not serve to elucidate or illustrate any point or solve any disputed question; (b) that there was no question as to the nature and extent of the wounds, nor as to how they were inflicted; (c) and that such testimony could only serve the purpose of inflaming the minds of the jury against appellant.

"The state, through her Assistant Attorney General, concedes error in the admission of the articles named because the infliction and nature of the wounds was not controverted, and the clothing would serve no purpose to solve any controverted issue, and further admits that their introduction was evidently inflammatory. As supporting his reasons for making such concessions, we are referred to the cases cited under Branch's Ann.Penal Code, § 1855; Cole v. State, 45 Tex.Cr.R. [225] 232, 75 S.W. 527; Aldridge v. State, 91 Tex.Cr.R. 648, 241 S.W. 145.

"We quote from Cole's Case, supra, as follows:

"`It sometimes becomes relevant testimony to admit the clothes of a deceased to explain the nature of the wound or some connecting fact, or to assist in developing the case in some way. This character of testimony has been the subject of many decisions, and usually it has been held that their admission was proper. But in this case there was no necessity for it. It explained no fact and was relevant to no controverted issue. That deceased was shot by appellant was an admitted fact. The nature of the wound, the character of it, its location and everything in connection with it was clearly proved; and there was no controversy about it. The admission of the bloody clothes before the jury could serve no purpose except to inflame their minds against accused. If it was relevant to any fact, and was properly admitted, the fact that it may have had an injurious effect upon appellant's case would not render its admission improper; but the exhibition of clothes, like any other fact, is admissible or not, as it may or may not be pertinent or relevant to some issue in the case. These clothes could explain nothing, and the sole tendency was to create prejudice."

In Huey v. State, 81 Tex.Cr.R. 554, 197 S.W. 202, 204, it is shown that a penalty of ninety-nine years' confinement in the penitentiary was assessed upon conviction for murder. The bloody clothes of the deceased were introduced in evidence when they served to elucidate no issue in the case. It was held that the bill of exception relating to the matter presented reversible error. We quote the language of Judge Davidson in the opinion as follows:

"There was nothing in the case before the jury at the time the clothes were admitted upon which to contradict appellant. It was while the widow of the deceased was on the stand testifying and through her that these clothes were admitted. The bill is quite lengthy and unnecessary to repeat. She was the second witness placed on the stand by the state in making out its case originally. The defendant had not testified, and there was nothing to contradict so far as he was concerned. The court, it would seem from his qualification, admitted the clothes only as bearing upon the location of the wound. There was no question about the location of the wound and none raised on the trial. Deceased was shot in front with a shotgun at close range, because the shot did not scatter. The wound went in about 2 or 2½ inches on the right side from medial line of the deceased's body and through the waistband of his pants. This was the only wound on him. There was but one shot fired. None of the shot entering the body went through. There could be no issue on the question as to the location of the wound on the body of deceased. The clothes were not admitted to contradict appellant, because appellant had not testified. The bill with reference to this matter is rather lengthy, and it is deemed unnecessary to embody it in the opinion."

See, also, Aldridge v. State, 91 Tex.Cr. R. 648, 241 S.W. 145, and Garrison v. State, 129 Tex.Cr.R. 32, 84 S.W.2d 477.

The following is taken from 18 Texas Jurisprudence, p. 340: "And the courts frequently have held such garments to be inadmissible—a bloody hat, coat, shirt or pants, a powder-burned jumper—the basis of decision being that in the circumstances the garments did not tend to elucidate any disputed question and that they served only to create prejudice on the part of the jury. `That such evidence has a tendency to inflame the minds of the...