Johnson v. State
| Decision Date | 20 May 1925 |
| Docket Number | (No. 9229.) |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
Clarence Johnson was convicted of murder, and he appeals. Reversed and remanded.
See, also, 263 S. W. 301.
Joe W. Taylor, of Waco, Arch C. Price, of Kerens, and Miller & Bartlett, of Waco, for appellant.
Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.
Appellant was convicted in the district court of McLennan county for the offense of murder, and his punishment assessed at confinement in the penitentiary for a term of 40 years.
Briefly stated, the facts show that appellant was the son-in-law of deceased, having married his daughter a few months before the tragedy, and at the time thereof was living about 300 yards from the home of the deceased, and working land belonging to deceased. There were no eyewitnesses to the killing, except appellant's wife. She explained the killing as being occasioned by the fact that appellant was handling a gun in the kitchen, where she was cooking supper, and her father was standing in the kitchen door and the gun went off accidentally, killing the deceased. The state sought to contradict this explanation by circumstances, such as appellant's failure to attend the funeral, and his failure to explain the killing to other people. This is a sufficient statement of the facts to enable a proper understanding of the questions hereinafter discussed.
By bill of exceptions No. 6, appellant complains of the court's action in permitting the witness Fowler to testify that he was a brother-in-law of deceased, and that he saw defendant the day after the killing and that defendant did not explain or attempt to explain to witness how deceased met his death.
Complaint is also made by bills of exception No. 7 and 8, to the action of the court in permitting the wife of deceased to testify that, nearly a month after the killing, she saw the defendant for the first time since the homicide, and that he did not explain to her how deceased met his death, and that he did not tell her how he happened to kill deceased, and did not tell her he was fooling with a gun at the time, and that it was accidentally discharged.
The record negatives the idea that either of these witnesses asked the appellant for any explanation of the killing, and negatives the idea that either of them said anything to him at the time that would call for an explanation or a discussion of the killing. The testimony was clearly inadmissible. Skirlock v. State (Tex. Cr. App.) 272 S. W. 782 not yet [officially] reported. Ripley v. State, 58 Tex. Cr. R. 489, 126 S. W. 586, and the cases there cited. Thompson v. State, 88 Tex. Cr. R. 29, 224 S. W. 892.
Based on the opinions by Judge Davidson in the Ripley Case, and the Thompson Case, supra, the following language is used in the Skirlock Case:
"Under our law the defendant when arrested has the unqualified right to choose either of two courses, he may talk under the penalty of having what he says, under some conditions, used against him, but in no event can...
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