Johnson v. State

• Decision Date: 26 October 1932
• Docket Number: No. 15542.,15542.
• Citation: 54 S.W.2d 140
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

54 S.W.2d 140

JOHNSON v. STATE.

No. 15542.

Court of Criminal Appeals of Texas.

October 26, 1932.

Rehearing Denied November 23, 1932.

Commissioner's Decision.

Appeal from District Court, Waller County; S. A. McCall, Judge.

Aaron Johnson was convicted of murder and he appeals.

Affirmed.

E. H. Davis and Wm. F. Jackson, both of Hempstead, for appellant.

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

CALHOUN, J.

The offense, murder; the punishment, death.

The state's testimony showed that the appellant and one Alberta Johnson, who was the undivorced wife of one Ellis Johnson, had been living together in adultery for several years; that during this adulterous relationship the deceased, Perlie Mae Johnson, was born. The evidence showed that at the time of her death the deceased was an 18 month old child. Some time prior to the homicide Alberta Johnson had left the appellant and moved to the town of Hempstead. Some time after she had left the appellant, the appellant came to the town of Hempstead and on several occasions importuned the said Alberta Johnson to live with him, which she refused to do. A few days prior to the killing of the deceased, the evidence showed that the appellant stated to the witness Alberta Johnson, in the presence of others, that, if she did not stay with him, he would kill her and the baby both. On the night of the homicide, appellant went to the house where Alberta Johnson and others were and an argument ensued and appellant asked Alberta Johnson to stay with him, which she refused, and appellant grabbed an ax. A witness by the name of Shelton intervened at this stage and persuaded the appellant to put the ax down and took the ax and locked it up in another room in the house. Thereafter, appellant got a razor off of the shelf, and, upon the refusal of Alberta Johnson to again agree to his request, he grabbed the said Alberta Johnson by the head and cut her on the back of the neck. She then ran and fell in the door going to the kitchen. At the time the said Alberta Johnson was cut, she was holding deceased in her arms, and, when she fell, the deceased fell out of her arms on the floor and commenced crying. She then ran out of the house and was followed out by the witness Shelton, leaving the appellant in the house. The said witness Alberta Johnson, as well as the witness Shelton, testified positively that after they got out of the house they heard the deceased crying and they left the baby in the room with the appellant. Alberta Johnson and the witness Shelton fled to a nearby house where a doctor was summoned to attend Alberta Johnson's wounds. Upon other persons going to the house, they found the deceased in the room where she had dropped out of her mother's arms with two deep gashes in her throat, her head being almost severed from the body. Appellant fled and was later apprehended near Houston.

The appellant, testifying in his own behalf, denied that he intentionally struck his baby or that he knowingly inflicted upon it any wounds, and he denied positively that he cut her throat after the parties had left the house, and his explanation was that, if the child was cut, it was cut while and during the cutting of its mother.

A doctor testifying for the state testified positively that the deceased could not have cried after the wounds had been inflicted upon her throat. It was the state's contention that, after the mother and the witness Shelton had fled from the house, the appellant then cut the throat of the child, and evidence was introduced as to the condition of the room, blood spots in the room and on the walls thereof, in an endeavor to substantiate their contention. Upon this phase of the case, the court submitted a charge on circumstantial evidence.

There are no bills of exception in the record. Several matters are urged in appellant's motion for new trial. The first of said matters brought up in said motion for new trial was that the court refused to sustain appellant's motion to disqualify a juror on the ground that the juror had formed an opinion as to the guilt of the defendant, and that, if taken as a juror, he would go into the jury box with his mind made up. In the answer of the state, to said motion, it is alleged that the juror, complaint of whom is made that the court refused to disqualify, was challenged peremptorily and did not sit as a juror in the trial of the case; that the appellant had used only ten peremptory challenges when the jury was completed to try the case and still had five challenges left, and the regular venire was not exhausted when the jury was selected to try the case and there was no objectionable juror forced on the defendant.

There is no complaint urged in the motion for new trial that there was any injury resulting to the appellant by reason of the court refusing to sustain appellant's challenge for cause as to said juror. In the absence of any injury shown appellant, the mere fact that the court refused to have the juror stand aside upon appellant's challenge would not be ground for setting aside the verdict and granting a new trial. See Ames v. State, 102 Tex. Cr. R. 190, 277 S. W. 661; Squyres v. State, 92 Tex. Cr. R. 160, 242 S. W. 1024; Hall v. State (Tex. Cr. App.) 49 S.W.(2d) 793.

Another complaint made in said motion for new trial is that the trial court erred in permitting the testimony of Alberta Johnson as a witness for the state to go to the jury because it was shown that she and defendant were then living together as husband and wife and had been living as husband and wife for a number of years; that she had borne children for defendant and they held themselves out to the world as husband and wife. It is shown by the undisputed evidence in the case that the witness Alberta Johnson was not the wife of appellant, but during the whole time that she lived with appellant and was having illicit relations with him she had a living husband to whom she had been legally married and from whom she had never been divorced. Under the decisions of this...