Johnson v. State

• Decision Date: 27 May 1936
• Docket Number: No. 18457.,18457.
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

94 S.W.2d 1173

JOHNSON v. STATE.

No. 18457.

Court of Criminal Appeals of Texas.

May 27, 1936.

Commissioners' Decision.

Appeal from District Court, Coryell County; R. B. Cross, Judge.

Ethel Johnson was convicted of murder with malice, and she appeals.

Reversed and remanded.

Maury Hughes, of Hughes & Monroe, of Dallas, and Tom Mears and Harry Flentge, both of Gatesville, for appellant.

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

KRUEGER, Judge.

The appellant was convicted of the offense of murder with malice and her punishment was assessed at confinement in the State Penitentiary for a term of 25 years.

The record before us shows that the appellant, her son (Joe Deane Blakenship), and his wife were visiting at the home of the appellant's father and mother, Mr. and Mrs. George Middick. On the 10th day of August, 1934, at about 11 a. m. some shots were heard in the direction of the back porch of the home of Mr. George Middick. An investigation disclosed that Joe Deane and his wife were lying on the back porch with a bullet wound in the head of each of them. Bernice, the wife of Joe Deane, had a thirty-two caliber pistol in her hand which carried two empty shells, indicating that the pistol had been fired twice. Joe Deane was shot near the left eye and the bullet ranged a little upward to the right side. His wife, Bernice, was shot just back of the right ear at the lower edge of the hair line. The state's theory was that the appellant committed the homicide in order to collect $3,000 insurance which deceased carried in some mutual company payable to the appellant. Appellant's theory was that Bernice killed her husband, Joe Deane, and then killed herself. This theory was based on a note purported to have been written by Bernice, and which reads as follows: "Dear Family: I'm telling you right now I'm tired of it. There's no one of you all will help me and your'e all able to do so I'm getting out of this mess. Don't punish anybody as I'm doing it all myself. Let the shrouding be pure white. Bernice, Good-bye to all." They base the theory of suicide on the further fact that if appellant shot Joe Deane, his wife would have fled from the scene; or if appellant shot Bernice first, her son would have taken the pistol from her.

Bills of exception Nos. 1, 2, and 3 will be considered together, as they relate to the same matter.

Bill of exception No. 1 reflects the following occurrence: The county attorney in discussing the question of the suicide note made the following statement to the jury: "This suicide note was found in the home of the defendant two weeks before the tragedy"—to which the appellant objected on the ground that there was no testimony of that nature and the same was an unsworn statement by counsel. Whereupon the county attorney made the following statement: "I was here at the former trial and it (the evidence) was a little different" —to which the appellant again objected and said objection was overruled. Thereupon the defendant requested the court to instruct the jury to not consider the argument for any purpose, which the court overruled and the appellant excepted. The court qualified said bill, and in his qualification states that the following language was used: "If you had been the mother, mother-in-law or father-in-law of the ones that had been killed, and two weeks before you had come in and found them writing such a note in your home"—at which time appellant objected in that there was not any testimony to that effect. Whereupon the county attorney said: "I beg your pardon. I was here at the former trial and it was a little different." The court further certifies that there was no evidence in the record of the finding of the suicide note two weeks or at any time prior to the killing.

Bill of exception No. 2 reflects the following occurrence: The county attorney in his argument to the jury pointed to the defendant in the presence of the jury and made use of the following language: "We do find, gentlemen, that people become so self-centered, so warped in their thinking, so perverted in their mind that they can kill their own offspring as a wild brood sow does her young. She is no real Mother. She is a beast. She is shorn of all the virtues of Motherhood"—to which appellant objected on the ground that the same was improper, highly inflammatory, abusive, and unwarranted; and requested the court to instruct the jury to not consider said argument for any purpose; all of which was overruled by the court. The court qualified the bill of exception, and in his qualification...