Jackson v. State, 20146.

• Decision Date: 01 March 1939
• Docket Number: No. 20146.,20146.
• Citation: 126 S.W.2d 965
• Court: Texas Court of Criminal Appeals
• Parties: JACKSON v. STATE.<SMALL><SUP>*</SUP></SMALL>

126 S.W.2d 965

JACKSON v. STATE.^*

No. 20146.

Court of Criminal Appeals of Texas.

March 1, 1939.

Rehearing Denied April 12, 1939.

Commissioners' Decision.

Appeal from District Court, Harrison County; W. H. Strength, Judge.

George Jackson was convicted for murder, and he appeals.

Affirmed as reformed.

Percy Woodard, of Marshall, for appellant.

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

KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the state penitentiary for life.

The evidence adduced by the state, briefly stated, shows that on the night of the 14th day of March, 1938, appellant shot his wife's arm off and also shot and killed his son, Oscar, a man of about twenty-seven years of age, and then set fire to the house and virtually cremated the body of his son.

Appellant and his wife did not get along very well, and several months prior to the fatal difficulty, he engaged the services of an attorney for the purpose of obtaining a divorce, but they continued to live together up to the time of the unfortunate occurrence without having obtained it. The state further proved that within a very short time after the homicide, the officers went to appellant's home and found him in a plum thicket with a shotgun. They disarmed him and he told them he had killed his son and shot his wife because they were unkind to him and that the son would not work.

Appellant testified in his own behalf, admitting the killing of his son; that he shot his wife and attempted to kill himself. He stated that he did not remember setting fire to the house and burning it.

He further testified that he had been married twice; that after his first wife died, he married his present wife in 1927, who was, at the time of the homicide, fifty-seven or fifty-eight years of age. That early in the morning of the day of the alleged homicide, he caught his wife and son in an act of sexual intercourse. That thereafter he gave his son some money to go to town and purchase some steak and corn. That the son returned about 5 P. M. with the steak but without the corn. After dark while he and his wife were sitting on the porch, he noticed his son make a motion to his stepmother, indicating that he wanted her to come into the house. That she got up, walked into the kitchen and he, appellant, followed about two minutes later armed with a gun. That he again saw them engaged in an act of sexual intercourse in the kitchen, whereupon he shot and killed the boy. His wife ran out, but a few seconds later returned to the kitchen and he shot her, striking her arm.

Bill of exception No. 1 reflects the following occurrence. At the beginning of the trial, all witnesses were placed under the rule. On the next morning after the trial had begun, the witness, Henry Long, entered the courtroom and remained therein for nearly an hour and heard some of the witnesses testify. Thereafter when the defendant called Long to the witness stand to testify concerning his good reputation as a quiet, peaceable, law-abiding and truthful man, the state objected on the ground that the witness had disobeyed the rule; that he had remained in the courtroom while the testimony was being given by other witnesses. The court sustained the objection, to which appellant excepted.

Such matters rest largely within the discretion of the trial court, and unless it is made to appear from the bill that the trial court abused his discretion to appellant's prejudice, this court would not be authorized to reverse the judgment. This bill fails to show such an abuse of discretion. See Rummel v. State, 22 Tex.App. 558, 3 S.W. 763; Leache v. State, 22 Tex. App. 279, 306, 3 S.W. 539, 58 Am.Rep. 638; George v. State, 17 Tex.App. 513, 516; Branch's Ann.P.C., Sec. 344, p. 197.

Bill of exception No. 2 reflects the following occurrence. Appellant sought to prove, and alleges he would have proved, by the witness Charles Wheeler, if permitted to do so, that appellant's reputation for truth and veracity was good. The state objected thereto on the ground that appellant's reputation for truth and veracity had not been attacked. Appellant contended, however, that since the state had shown in the development of its case that he stated to the officers that he killed his son and shot his wife because they were unkind to him, and because the son would not work, that this was an attack upon his reputation for truth and veracity, since he took the witness stand and testified that he shot them because they were carrying on illicit relations.

We are unable to agree with appellant. If the state had asked him if he had not made such a statement to the officers on the night in question and he had denied it, and the state had then offered testimony that he had made such a statement, there might be some merit to his contention, but such was not the case. The state offered the statement, made by him to the officers, immediately after the alleged offense, as original testimony, which he denied in a manner by stating that he did not remember it. We do not see how this was an attack upon his veracity. He merely controverted the state's testimony in this respect.

Bill of exception No. 3 reflects the following occurrence. The state, on cross-examination of appellant, asked him if he would know his wife if he should see her (he having been confined in jail since the commission of the alleged offense), to which he replied: "I don't know whether I would know her now if I would see her; she might change up so." The wife was then called into the courtroom in order that he might look at her, but he did not identify her. She was immediately retired from the courtroom and no further questions relative thereto were asked. Appellant objected, however, on the ground that it was using the wife as a witness against him and that such was highly prejudicial to him to parade her before the jury.

That thereafter appellant was recalled to the witness stand to give further testimony in his behalf and the state, on cross-examination, again asked him if he would know his wife if he saw her, to which he replied: "I might", or words to that effect. Whereupon the wife was again brought into the courtroom, but was immediately requested to retire and did so. Appellant again objected for the same reasons—that it was highly improper and prejudicial to him to parade an armless woman before the jury.

We do not regard this as requiring the wife to give testimony against her husband; nor was the act of appearing in the courtroom with an empty sleeve of such a prejudicial nature as to require a reversal of the case. The fact that he had shot her arm off was shown, not only by his own testimony, but by that of the other witnesses. Consequently the jury was fully informed of it.

Bill No. 4 complains of certain remarks of the district attorney in his closing argument to the jury. We have examined the bill in connection with the facts proved, and find that the remarks were based on testimony adduced upon the trial. The district attorney had a right to review and discuss the testimony and to draw reasonable conclusions therefrom and unless he departed from the facts and injected other matter not in evidence, there would be no error.

We note that the trial court, in sentencing the appellant, failed to observe the indeterminate sentence law. Vernon's Ann.C.C.P. art. 775. Therefore, the sentence will be reformed so as to read that appellant be confined in the state penitentiary not less than two years nor more than life.

All other matters complained of by appellant have been examined by us and are deemed to be without merit.

As reformed, the judgment of the trial court is affirmed.

* Leave to file ...