Johnson v. State

• Decision Date: 27 April 1960
• Docket Number: No. 31719,31719
• Citation: 336 S.W.2d 175,169 Tex.Crim. 612
• Parties: Adrian JOHNSON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 175

336 S.W.2d 175

169 Tex.Crim. 612

Adrian JOHNSON, Appellant, v. STATE of Texas, Appellee.

No. 31719.

Court of Criminal Appeals of Texas.

April 27, 1960.

Bernard A. Golding, Joe S. Moss, Houston, for appellant.

Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Lee P. Ward, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The appellant and Joe Edward Smith were jointly indicted. A severance was granted and the appellant was placed on trial.

The deceased, a boy twelve years of age, left home on his bicycle going swimming shortly after 3:00 p. m., Monday, July 20. Upon his failure to return home, a search was made until late that night without finding the boy and the search was resumed the next morning. About 8:30 a. m., July 21, the deceased's bicycle was found beside a small house on a lot occupied only by the house which was referred to during the trial as a shack. The shack was located equidistant from the sides of the lot and about 50 yards from the street. An examination of a closed disconnected electric refrigerator in the shack revealed the nude body of the deceased. The body and its position evidenced the fact that it had been forced into the refrigerator.

The testimony shows that the appellant, Joe Edward Smith, Ira Lee Saddler, Roy Miller and two or three other boys were seen within a short distance of the shack between 5:30 p. m. and 6:30 p. m., July 20. The time varying according to different witnesses. The owner of the Chuck Wagon cafe while testifying identified the appellant and Joe Edward Smith who were with four or five other boys and stated that they were at the cafe a few minutes after 6 p. m. and were walking in the direction of the shack when he last saw them.

The state introduced appellant's signed written statement in evidence in which he stated that at about 6:30 p. m. he was in company with Joe Smith, Dave Climmets, Billy Joe Bufferin, Johnnie Robbins, Charence Robbins, Clyde Robbins, Charles Archer, Ira Lee Saddler and 'Man' Miller; that as they were walking down West Gray they saw a little white boy riding a bicycle; that 'Man' Miller said 'let's get him'; that when the little boy got up to them Ira Lee (Saddler) grabbed him and throwed him off the bicycle; that the boy ran across the street to the 'dirt yard' and fell; that Clarence Robbins said the 'dirt yard' office was open and opened the door; that Ira Lee (Saddler) pulled the boy into the office; that 'Man' Miller asked the boy if he had any money and the boy said 'No. Please let me go'; that Dave Climmets said 'lets molesterate him', and Joe (Smith) said OK.

The confession describes how the boy was then forced to submit to rectal sodomy by appellant and each of his companions, being held in turn by Ira Lee (Saddler) and Dave (Climmets) 'with a head lock'. During this ordeal the boy 'was groaning and begging us not to do that'. Dave (Climmets) and Ira (Saddler) then 'forced the boy into the ice box that is in this office, and he was fighting back, but they got him in the box and closed the door on him. All the time they was putting the boy in the ice box he was screaming them not to do that'.

Appellant's testimony shows that he was arrested at about 1:30 a. m. and in his written statement he states that it was signed at 6:30 a. m. on the same day.

The evidence shows that deceased's blood group was 'O'; that the blood group of the appellant, Joe Edward Smith, Robert Miller, Roy Miller was 'O'; that the blood group of Arthur Clemens and Charles Archer was 'A'; and that the blood group of Ira Lee Saddler was 'B'.

An examination was made of the wearing apparel taken on July 23 from the hereinafter named persons.

An analysis of several spots of human blood stain on the front of the left trouser leg of the blue jeans of Robert Miller showed the blood to be group 'O'. An examination of Roy Miller's trousers showed a spot of fecal material near the top of the fly on the right side. The human blood stain or spot on Joe Edward Smith's clothing was insufficient to determine the blood type. A human hair found in Ira Lee Saddler's trouser's pocket was identical in all respects to the hair removed from the head of the deceased.

The evidence further shows that an examination of appellant's penis, the penis of Joe Edward Smith and the penis of Robert Miller showed a bruise or a definite discoloration on the underneath side near the head.

Dr. Jachmczyk, whose qualifications as a pathologist were admitted and stipulated, testified that he performed an autopsy on the body of the deceased. He expressed the opinion that the cause of deceased's death was 'asphyxia due to suffocation in association with sodomy.' He further testified that his examination of the deceased's body showed numerous scratches and abrasions, that there were purple-blue discolorations on each side of the neck and over the buttocks, and that the examination of the rectum showed that it was overstretched, that there were lacerations and tears on the inside which were caused by something being inserted into the rectum, that they were in his opinion very painful and there was evidence of a very marked resistance by the deceased. He further testified that asphyxia is a lack of oxygen to the various organs of the body which require oxygen to sustain life; that the examination of the deceased's body showed a combination of injuries which are responsible for the asphyxia. 'The most important and major of them is the rupture, or tear of the left leaf of the diaphragm with a rupture of the stomach with compression upon the left lung by the encroaching stomach and stomach content. * * * In this body there was a two-inch hole in the fundus of the stomach, the fundus of the stomach being the upper portion of the stomach. There was that injury, and there was also an injury in the neck, in the form of swelling in the neck. The bones of the neck, however, were not fractured, so that the mechanism of the asphyxia, that is, of the suffocation or the lack of oxygen, is the injury to the left chest and the injury also in the neck'; and that in his opinion the injuries to the neck could have been made by a headlock placed on the decased.

The witness further testified in response to the following question: 'Now, the injury to the left chest, or diaphragm, doctor, what sort of injury was that, or, in your opinion, what type of force was applied to cause the injury you saw there?' Answer: 'In my opinion, that type of injury would be caused by a squeezing or a bear-hug type of pressure on the chest. It could also be caused, however, if the chest were to strike something hard. I do not think that the latter occurred in this instance, inasmuch as I did not find and there was none present, of a hemorrhage in the wall itself, that is, in the skin itself, which is a more common finding if the chest and the abdomen were to have hit something. Instead, in my opinion, this injury was the result of a squeezing it was a squeezing--type injury, or a mugging type, or a bear hug, type, if that makes it clear'; and that in his opinion all of the injuries suffered by the deceased occurred at the same time.

Appellant...