Holland v. State, 24041.

• Decision Date: 05 January 1949
• Docket Number: No. 24041.,24041.
• Citation: 216 S.W.2d 228
• Parties: HOLLAND v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W.2d 228

HOLLAND v. STATE.

No. 24041.

Court of Criminal Appeals of Texas.

January 5, 1949.

Commissioners' Decision.

Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.

George Holland was convicted of murder and he appeals.

Judgment reversed and cause remanded.

W. J. Durham, of Dallas, and Dillard, Cooke & Dillard, of Lubbock, for appellant.

Lloyd Croslin, Dist. Atty., and E. G. Pharr, Asst. Dist. Atty., both of Lubbock, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

The conviction is for murder, with the death penalty assessed.

The body of deceased (the sheriff of the county) was found lying on the ground on a vacant lot in what is known as the "Flats," in Ralls, Crosby County, by the undertaker. Five bullet wounds were on the body: three in the head, one through the shoulder and chest and one on the index finger of the left hand. The time the body was found is not fixed, further than as on the 2d day of August, 1947.

Deceased was last seen alive by the witness James, who operated a filling station located about a quarter of a mile east of the residence of appellant. James testified that deceased drove to his filling station about 9:15 p. m., August 2, 1947, and "left his car parked on the other side of the lot behind the building and walked off."

Lewis Flowers operated a cafe in the "Flats" and lived in a house south of the cafe. About eleven o'clock on the night of August 2, 1947, Flowers was in the cafe and heard a shot. He ran out to the porch, where he heard the report of and saw the flash from two other gun shots to the back or south of the cafe. Shortly thereafter, he saw appellant coming towards him from that direction, walking fast and holding his right hand up to his side. Flowers heard some one ask, "Is he shot?" to which appellant replied, "No, come on." Appellant walked around the house to where his car was parked and drove away. The witness Flowers further testified:

"After the car had left I walked off of the porch, south of it to the house and by that time somebody had cranked up an automobile that was there in my yard, of the house where I live, and they turned on the lights and I seen a man. The lights pointed south. The automobile was headed south. The lights were pointed in the direction from which I had heard the shots and where I had seen the gun flashes and where I heard the shots. In those lights, I seen a man, looked like the body of a man lying down in some weeds like south of my house. That was the same place where I had saw the gun flashes."

The body was that of deceased.

Witnesses who were visiting in the Flowers home at the time and nearby corroborated the fact of hearing some five or six gun shots and seeing the flashes and seeing appellant come from the direction thereof, get into his car, and drive away. Some of those witnesses saw a "shiny" object in appellant's hand at the time. Appellant was some hours thereafter arrested at Amarillo, Texas.

Appellant did not testify as a witness, nor did he offer any affirmative defensive testimony. It is insisted that the evidence is insufficient to support the conviction. The case was submitted to the jury upon circumstantial evidence.

The rule of law relative to the sufficiency of circumstantial evidence to sustain a conviction is that it should appear not only that an offense, as charged, has been committed but there should also be proof, to a degree of certainty greater than a mere probability or strong suspicion, tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction, constituting the offense charged against him. Branch's P. C., Sec. 1877, p. 1042.

Here, the facts show that the deceased came to his death as a result of a foul assassination at night. Appellant, with some "shiny" object in his hand, was seen to rapidly leave the place where the body was found and the flashes of the gun had been seen, and to get into his car and drive away, under circumstances evidencing flight and guilty knowledge. There is no suggestion of an outstanding hypothesis of the guilt of another, or of the innocence of the appellant. While it is true that no direct motive is shown for the killing, such, however, is not required to sustain a conviction for murder.

The facts are deemed to be sufficient to warrant the jury's conclusion of guilt. Appellant's contention to the contrary is overruled.

Was appellant unlawfully deprived of his bills of exception?

The record affirmatively reflects that at the time notice of appeal was given, appellant made no request for an extension of the statutory time within which to file his bills of exception in the trial court.

Under the provisions of Art. 760, C. C. P., appellant had thirty days within which to have approved and to file his bills of exception in the trial court.

Twenty-five days after the expiration of the thirty days mentioned, or fifty-five days after the date notice of appeal was given, appellant presented to the trial judge for approval his bills of exception. The time for filing bills of exception had, at that time, long expired.

The trial judge refused to approve the bills. His reason for so doing is shown by the following certificate, which is attached to each bill, viz.:

"It appearing to the Court that the Verdict of the Jury was received in open Court on September 16, 1947 and Judgment rendered thereon, and it further appearing that an Amended Motion for New Trial was filed October 6, 1947, and said Amended Motion for New Trial was heard by the Court on December 4th and 5th, 1947 and said Amended Motion for New Trial was overruled on December 5th, 1947, said order of Court overruling same being as follows:

                           "`No. 3183
                "`The State of Texas
                vs
                George Holland
                      In the 72nd District Court
                                 of
                        Lubbock County, Texas
                   "`Judgment Overruling Motion for
                              New Trial
                

"`On this the 5th day of December A. D. 1947 came on to be heard the motion of the defendant George Holland to set aside the verdict and judgment herein rendered against him on the 16th day of September A. D. 1947, and to grant him a new trial in this cause; and the State being present in open Court by her District Attorney, and the defendant being present in Court in person and by his attorneys, and the Court having heard the motion and the evidence thereon submitted by both the defendant and the State, is of the opinion that the same should be refused.

"`It is therefore considered, ordered and adjudged by the Court that the said motion for a new trial herein be and the same is refused, and in all things overruled.

"`Whereupon the defendant, GEORGE HOLLAND, in open Court excepted to such judgment and gave notice of an appeal herein to the Court of Criminal Appeals of the State of Texas, which said notice is here now entered of record.

                                 "`/s/ Daniel A. Blair
                                       
                                       Daniel A. Blair
                                      Judge Presiding'
                

"And it further appearing to the Court that this Bill of Exception No. 1 was for the first time presented to the Court for approval or disapproval on January 29, 1948, at 5 P. M., which time was fifty-five days after date of the Order overruling Motion for New Trial, there having been no extension of time requested by Defendant or granted by the Court within the 30 day statutory period for filing said Bill of Exception, and it further appearing that the Court has no power under the law to order said Bill filed.

"It is...