Howard v. State, 22744.

• Decision Date: 15 March 1944
• Docket Number: No. 22744.,22744.
• Citation: 178 S.W.2d 691
• Parties: HOWARD v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W.2d 691

HOWARD v. STATE.

No. 22744.

Court of Criminal Appeals of Texas.

March 15, 1944.

Appeal from District Court, Midland County; Cecil C. Collings, Judge.

Shirley Howard was convicted of murder, and he appeals.

Reversed and remanded.

Klapproth & Hamilton, of Midland, for appellant.

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

HAWKINS, Presiding Judge.

Appellant was convicted of the murder of J. A. Whittenton and his punishment was assessed at 45 years in the penitentiary.

The killing occurred on November 8, 1942. Deceased was 57 years old, appellant 31. Appellant and his wife had lived in the garage apartment of deceased from December, 1941, to March 15, 1942. Appellant was an employee of an ice company in Midland delivering ice.

On the day of the killing deceased and his wife were in their car going towards their home when appellant drove up behind them, bumping into their car twice with his delivery truck. They drove to the ice plant to report appellant's conduct. Shortly after they reached the plant appellant drove up, got out of his truck with a .22 rifle which he presented at deceased, saying he was going to kill deceased. Mr. Jackson got between them. He endeavored to dissuade appellant, and deceased was begging appellant not to kill him (deceased). Appellant told Jackson if he did not get out of the way he (appellant) would shoot Jackson, whereupon Jackson stepped aside and appellant shot deceased, killing him almost instantly.

Appellant's sole defense was that he was insane at the time of the killing. He testified that during the time he and his wife lived in the apartment near deceased appellant became suspicious that improper relations existed between his wife and deceased, which was the reason for moving to another part of town; that from things he observed he was suspicious that deceased was visiting appellant's wife at their new home, but that she denied it until appellant saw deceased leaving appellant's house, and when he advised his wife of what he had seen she admitted the improper relations with deceased, stating that they had begun when they lived in deceased's apartment. Appellant took their baby and went to his father's and mother's home some miles in the country, but in a few days returned for his wife and also took her there. About August 1 he commenced looking for a house in Midland so they could move back on account of his work there. His wife begged him not to take her back there because she said deceased would not let her alone. On August 7, while he was still trying to find a house in Midland, his wife committed suicide. Appellant attributed his wife's suicide to deceased's conduct towards her. While the killing of deceased did not occur until three months after the suicide of appellant's wife, he claimed that he never saw deceased during these three months except at a distance. On the other hand, Mrs. Whittenton testified that during said three months when she would be with deceased they saw appellant frequently and would wave at him and he would wave at them; that there was nothing to indicate that there was any ill feeling between appellant and deceased.

A number of objections to the court's instructions to the jury were presented. They are very general in character. It is doubtful if they comply with the requirement of Art. 658, C.C.P., Vernon's Ann. C.C.P. art. 658, that the objections to the charge "distinctly specify each ground of objection." The charge has been examined. It appears not vulnerable to the general objections urged.

The bills of exception appear to present no error, save the one now to be considered.

Appellant attributed all of his troubles and the death of his wife to the conduct of deceased. There is no evidence in the record which suggests any other motive for the killing than as indicated.

Bill of exception number 9 reflects that appellant had testified on direct examination that he loved his wife better than any other man ever had loved his wife, and that he mourned her death. On cross examination the district attorney, without objection from appellant, inquired of appellant whether or not it was true that within a few days after the death of his wife he was in Mexican town in Midland, Texas, dancing with a Mexican girl. Appellant vehemently denied that such was the case. The State offered no evidence in regard to the incident inquired about. In his argument to the jury the attorney for appellant, commenting upon the fact that the district attorney had asked the above mentioned question of appellant, and particularly criticizing the district attorney, used the following language: "If the district attorney had any witnesses to impeach this testimony of the defendant, he would have produced them. It was most unfair of him to ask such questions, thereby insinuating that the defendant was in Mexican town dancing with a Mexican girl within a few days after the death of his wife when no witness would testify to that fact, and the district attorney knew it. I am surprised that Mr. McDonald would do this."

In his closing argument to the jury the district attorney made the following statement: "Gentlemen of the Jury: Mr. Hamilton severely criticized me in his argument for asking the defendant Shirley Howard if he was at a dance in Mexican town...