Johnson v. State

• Citation: 48 S.W.2d 274
• Decision Date: 09 March 1932
• Docket Number: No. 14913.,14913.
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W.2d 274

JOHNSON v. STATE.

No. 14913.

Court of Criminal Appeals of Texas.

March 9, 1932.

Rehearing Denied April 20, 1932.

Commissioners' Decision.

Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.

Ernest Johnson was convicted of murder, and he appeals.

Affirmed.

Nye Hale Clark and Ben F. Cone, both of Lockhart, and C. L. Patterson and Paul W. Evans, both of San Antonio, for appellant.

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

CHRISTIAN, J.

The offense is murder; the punishment, death.

The case was tried in Caldwell county on a change of venue from Medina county.

It was alleged in the indictment, in substance, that appellant, with malice aforethought, killed Frank Kempf by striking him with an iron bar and wooden stick. Appellant entered a plea of guilty. The state offered in evidence appellant's written confession, wherein he stated that he went to the home of deceased, Frank Kempf, at night, with John L. Green, for the purpose of killing and robbing deceased. He stated in the confession that he and his companion called deceased out of the house and that he struck deceased on the head with a stick of wood while John L. Green hit him with a piece of iron bolt. According to the confession, the parties then placed deceased's body in his (deceased's) car and drove to a place near a schoolhouse, where they threw the body into some weeds. A small amount of money was taken from the person of deceased. The state introduced in evidence testimony touching the finding of the body of deceased, several days after the homicide, at the schoolhouse. Several witnesses identified the body as being that of deceased.

Testifying in his own behalf, appellant admitted that he and John L. Green went to the home of deceased for the purpose of killing and robbing him. He detailed from the witness stand the matters embraced in his confession. He testified that his confession spoke the truth, with the exception of a certain immaterial statement. He said he was born in 1912. We quote from appellant's testimony as follows: "I have smoked Marijuana. I smoke it all the time. I have been smoking it about six months. I smoked two or three cigarettes a day. As to what effect that has on me, it makes me crazy, I don't know what I am doing. On the 15th day of June (the date the offense was committed) I smoked two or three Marijuana cigarettes." On cross-examination, a physician who was testifying for the state said: "A boy nineteen years addicted to smoking Marijuana cigarettes, if he was a constant smoker, it would have a marked effect upon his mind and mentality. It would disturb and derange his mental capacity." Appellant's mother, in referring to the use of Marijuana cigarettes by appellant, said: "Ernest has smoked Marijuanas. When he smokes them Marijuana cigarettes, he lays down and sleeps two or three hours, and when he gets up he acts just like he was under the influence of whisky, just like he was drunk. I don't know whether he smoked any on June 15th (the day of the offense) or not. He slept a long time, and when he got up he looked like he had been smoking them. I did not want him to smoke them; I told him not to smoke them things, he would go crazy."

The trial court instructed the jury that appellant had entered a plea of guilty, and charged the jury to find appellant guilty of murder with malice aforethought and assess his punishment at death, or by confinement in the penitentiary for life, or by confinement in the penitentiary for any term not less than two years. Appellant interposed no objections to the charge of the court. He now contends that the court committed fundamental error in not defining malice aforethought, and in omitting to instruct the jury that the punishment could not be assessed at more than five years, unless, from all the facts and circumstances, the jury believed appellant acted with malice aforethought. The holding of this court in Scott v. State, 114 Tex. Cr. R. 631, 26 S.W.(2d) 263, is adverse to appellant's contention. See, also, Arcos v. State (Tex. Cr. App.) 29 S.W. (2d) 395. In any event, it does not appear, under the facts, that the failure of the court to give the instruction under consideration could have harmed appellant. The evidence does not even suggest that the killing was other than upon malice aforethought.

Appellant urged for the first time after his conviction that the testimony of himself and his witnesses raised the issue of insanity, and that the trial court, after having heard such testimony, should have withdrawn his plea of guilty and tried the case on a plea of not guilty. Appellant relies upon the case of Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180, in which this court said that, if evidence be introduced tending to show the accused insane at the time of the commission of the offense, it is proper for the trial judge to have the plea of guilty withdrawn, and a plea of not guilty entered. Appellant also cited Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 679. The cases cited assert correct propositions of law. Appellant detailed minutely his acts and conduct up to, during, and after the killing of deceased. No witness testified, in terms or effect, that appellant did not know at the time he killed deceased that it was wrong to kill him. It is true that appellant testified that he smoked two or three Marijuana cigarettes on the day of the killing. The killing occurred late at night. When appellant smoked the cigarettes was not shown. The fact alone that a physician testified that the constant smoking of Marijuana cigarettes by a boy nineteen years of age would have a marked effect on his mind and mentality, and would disturb and derange his mental capacity, did not, in our opinion, in the light of the record, require that the court have the plea of guilty withdrawn and the case submitted on a plea of...