Jones v. State, 23372.

• Decision Date: 05 June 1946
• Docket Number: No. 23372.,23372.
• Citation: 195 S.W.2d 349
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

195 S.W.2d 349

JONES v. STATE.

No. 23372.

Court of Criminal Appeals of Texas.

June 5, 1946.

Rehearing Denied June 28, 1946.

Appeal from District Court, Gonzales County; Lester Holt, Judge.

Louis Jones was convicted of murder, with malice, and he appeals.

Affirmed.

G. Q. Youngblood, of Dallas, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the murder, with malice, of John Perrault, and by the jury awarded the punishment of death, hence this appeal.

It is shown that appellant was indicted by the grand jury of Gonzales County on January 29, 1946, in which indictment it was alleged that he killed with his malice one John Perrault. On January 31st thereafter appellant's relatives employed an attorney to conduct his defense, and this cause proceeded to trial on February 4, 1946, with the above noted result.

Appellant's attorney filed a motion for a continuance on such 4th day of February, which motion was by the court overruled, and we find noted in the trial court's order overruling such motion an exception thereto, but there does not appear in the record a bill of exceptions to such action of the trial court.

Mr. Branch says, on page 183 of his Annotated Penal Code, that: "In the absence of a proper bill of exceptions the supposed error in overruling an application for a continuance will not be reviewed on appeal, and a recital in the judgment that defendant excepted or a complaint in the motion for a new trial is not a bill of exceptions," citing a large array of authorities, beginning with Nelson v. State, 1 Tex.App. 41, 44.

There are no bills of exceptions found in the record, and there were no objections to the trial court's charge. The awarding of the extreme penalty, however, causes us to carefully consider this case from all the angles presented by the evidence which is before us.

Appellant seems to be a discharged negro soldier who lived in Dallas. In the early days of December, 1945, being possessed of a black Dodge Coupe, he seemed to be aimlessly driving about over the State, finally landing in San Antonio on December 6th. At that place he met the deceased, also a discharged negro soldier, from Louisiana. It was claimed by appellant in his confession that after some preliminaries between these two men, the deceased hired appellant to drive him to Houston for the sum of $5. On the way to Houston, the sole testimony as to what took place at the killing comes from appellant's confession as follows:

"* * * We drove on toward Houston about a half a mile further and pulled off on the side of the road and stopped. I had been driving my car all this time. I cut my light on dim and I said, `How about that money you got.' He says to me 'Money' and I said `Yes'. He rech in his pocket and pulled out a knife and struck at me with the knife. I hit the soldiers arms and he hit the top of the car with the knife and cut a place in the top of my car about 10 or 12 inches long. The cut is still in my car, it hasn't been fixed as far as I know. When his hand came down, I caught hold of his wrist my right hand. Then I began to open the door on my side. He shuk aloose from me and I opened the door and reached back and got the gun which was just behind the seat. I got the gun with my left hand. I then switched the gun to my right hand. I never did get out of the car, I just got one foot on the running board. I got back in the car with the foot and we were scuffling. The soldier was trying to cut me. I closed the door then he made like he was trying to get close to me so I reared back and he came toward me. Then I shot him kinda on the left side of his face. He fell back on his side of the seat. I then crawled over the man I had shot and got out of the car on his side of the car. In getting out of the car I pushed his legs over a little with my feet then I got out of the car and pulled the man out of the car by his legs. He was dead as far as I know. After I got him out of the car I took about $25 cash out of shirt pocket. I then drug him over to the side of the road, left him and turned my car around and drove toward San Antonio. I did not stop anywhere until I got to San Antonio. When I got to San Antonio I opened an envelope which the soldier had put in my car and got a check out of the envelope. This envelope had some papers of the soldier and his discharge in it. I went into a colored place there near a taxi stand on Commerce Street, San Antonio, Texas, and got something to eat but I didn't eat it. I endorsed the check which I had got from the soldiers papers and cashed it in the colored place. I endorsed the check in the name of the person to which the check was made payable to. I first endorsed the check on the wrong end and the man told me to scratch it out and endorse it in the right place. I then endorsed it again in the right place and got the money on the check. The mans name that I signed to the check who the check was made out to was John Perralt. $70 sumpin dollars for the check which was the amount the check was made out for. I think I left this place around midnight and started back to Dallas, Texas. I stopped in a town I think was New Braunfels. I stopped at a Texaco station in that town and asked the man there if it would be all right if I pulled up in there and go to sleep. He told me that `Yes, it's all right boy.' I pulled up in there, stayed there in the car and nodded until daylight on the morning of December 7, 1945. When daylight came I left toward Dallas, Texas. Before I left New Braunfels, I got out of my car and I saw there was blood on the running board on the right side of my car. I went to Waco, Texas, and stopped for gasoline. The next stop was between Waxahachie and Hillsboro, Texas, where I saw some colored men standing on the porch of a small house on the left hand side of the highway. I stopped and blowed the horn and motioned for the men to come to me and they did. There were two men that came over to where my car was parked. When they got over to me, I asked them if they wanted some army clothes and they asked me what kind was it and I told them shoes, slickers, pants, and they said `Yes, we'll take em.' Then I gave them the clothes that belonged to the man that I had killed the night before. I don't know the names of the people I gave the clothes to. That was about 10:30 A.M. Dec. 7, 1945 when I gave the men the clothes. As soon as I gave them the clothes they went on back across the field toward their house. I then went on driving my car toward Dallas, Texas. I did not stop any more until I got to Dallas. When I got to Dallas I stopped at the corner of Forest and Home Street at a Texaco filling station where I had my car completely washed by a colored boy. The colored boy that washed the car asked me about the blood on my car and I told him that a lady got out. I waited at this service station until they got thru washing my car and then I got my car and went on home. It must have been about a quarter after 12 when I got home. That is 12:15 P.M. December 7, 1945.

"When I shot the soldier I only fired one shot."

It...