Jordan v. State, 24540

• Decision Date: 21 December 1949
• Docket Number: No. 24540,24540
• Parties: JORDAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 449

226 S.W.2d 449

154 Tex.Crim. 217

JORDAN v. STATE.

No. 24540.

Court of Criminal Appeals of Texas.

Dec. 21, 1949.

Rehearing Denied Jan. 25, 1950.

Putney & Ritchey, Victoria, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of murder with malice and his punishment was assessed at confinement in the state penitentiary for life.

He brings forward forty-three bills of exceptions wherein he complains of many alleged errors committed by the court in the trial of the case. Many of the bills relate to the same subject matter and may be considered and disposed of together.

In Bills of Exceptions Nos. 1 through 24, he complains that the court erred in permitting the district attorney to ask the prospective jurors if they had any conscientious scruples against the infliction of the death penalty as a punishment for crime in proper cases. His contention is that after the indictment had been returned against him, the district attorney agreed that he, appellant, might be released from custody on bail in the sum of $6,500 and thereby had waived the death penalty; that therefore he had no legal right to make the inquiry. The court overruled the objection and he excepted. These bills further show that the district attorney challenged for cause such prospective jurors who stated that they had conscientious scruples against the infliction of death as a punishment for crime in a proper case, and the court sustained the challenge, to which ruling appellant timely objected and excepted. We see no error reflected by the bills. Although the district attorney may have agreed that accused may be admitted to bail this was nevertheless a capital offense under the law since the indictment charged appellant with murder with malice. Consequently the state, under Sec. 11 of Art. 616, Vernon's Ann.C.C.P., was authorized to make the inquiry complained of and to challenge for cause such of the prospective jurors who stated that they had conscientious scruples against the infliction of death as a punishment for crime. See Thompson v. State, 19 Tex.App. 593; and Kennedy v. State, 19 Tex.App. 618. Moreover, appellant does not claim that by the proceedings complained of any objectionable juror was forced upon him, in the absence of such showing no injury resulted to him. See Tex.Jur., Vol. 26, page 678, Sec. 110.

By Bill of Exception No. 25, he complains of the admission in evidence of a previous difficulty between appellant and deceased about four hours before the killing took place. The court qualified the bill and in his qualification states that he admitted the testimony on the issue of motive. We are of the opinion that the bill as qualified fails to reflect any error. See Marnoch v. State, 7 Tex.App. 269; McKinney v. State, 8 Tex.App. 626; Fritts v. State, 119 Tex.Cr.R. 412, 42 S.W.2d 609; Shannon v. State, 118 Tex.Cr.R. 505, 38 S.W.2d 785; Reynolds v. State, 101 Tex.Cr.R. 192, 274 S.W. 974; Ott v. State, 87 Tex.Cr.R. 382, 222 S.W. 261; and Hardison v. State, Tex.Cr.App., 85 S.W. 1071.

By Bill of Exception No. 26, he complains of the testimony given by Andres Covarreubies to the effect that after he, the witness, had left the Gonzales Cantina he started home and stopped by a beer parlor run by John Zambrano and while there the defendant came in. We admit that we fail to see for what purpose this testimony was admitted. It was merely proof of an isolated fact, and in no way impinged on his defense or injuriously affected him in his legal right. The bill in the condition in which it appears in the record does not reflect any error.

By Bill of Exception No. 27, appellant complains because the district attorney was permitted to ask a witness a leading question. In some instances where the witness is an unwilling or hostile witness, it is permissible to ask leading questions. This bill is deficient in that it fails to negative the existence of fact which would authorize the state to ask a leading question. See Carter v. State, 59 Tex.Cr.R. 73, 127 S.W. 215; Knauf v. State, 108 Tex.Cr.R. 590, 2 S.W.2d 229; and Jones v. State, 108 Tex.Cr.R. 414, 1 S.W.2d 617.

Bill of Exception No. 28 is deficient in that it fails to show any fact which would take the testimony complained of out of the rule of res gestae. A bill which merely states that the testimony complained of was not res gestae is insufficient. See Mallory v. State, 37 Tex.Cr.R. 482, 36 S.W. 751, 66 Am.St.Rep. 808; Davis v. State, 107 Tex.Cr.R. 357, 296 S.W. 596; and Branch's Ann.P.C., page 134, Sec. 209.

Bill of Exception No. 29 reflects the following occurrence: The state called as a witness Manual Gutierez who, after having testified that he was at the place of the killing; that he remained there a short time, then went to the bus station with Antonio Gonzales, the deceased's brother; and then the witness was asked to tell the jury what Antonio Gonzales did at the bus station where he saw appellant with a gun in hand. Appellant objected to the question and the answer sought to be elicited on the ground that he was not responsible for what Antonio Gonzales might have done. The court overruled the objection and he then and there excepted. Thereupon, the witness testified, 'He (the defendant) told both of us not to go in the door, if either of us did go inside that he would shoot anybody.' It will be noted that the witness did not say a word about what Gonzales did or said. He testified to what appellant did and said. Therefore, the bill fails to reflect error. The court qualified the bill and in his qualification states that what occurred at the bus station took place very shortly after the killing and prior to appellant's arrest while he still had the deadly weapon in his hand and that it was admissible as res gestae of the offense on the issue of malice and other issues in the case. The bill as qualified by the court was accepted by appellant and he is bound thereby.

Bills of Exceptions Nos. 30, 31, and 32, in our opinion, are without merit since they fail to show that any injury resulted to appellant by the testimony elicited from the witness Manuel Gutierez, therefore, we see no need for an extended discussion thereof.

By Bill of Exception No. 33 he complains of the following remarks by the district attorney in his argument to the jury: 'I say it is the kind of a case that if he sat in the electric chair, that he would be getting what he is entitled to. Then he won't be back. He is vicious and dangerous, and has forfeited his right to live among decent, law-abiding citizens.' Appellant objected to the words 'vicious and dangerous.' The court, in overruling the objection, stated, 'I believe Mr. Martin is drawing his own conclusion from the testimony.' Appellant then objected to the court's remarks and reserved his exception. This bill shows upon its face to be multifarious, since it complains of the argument of the district attorney and some remarks made by the court in overruling appellant's objection thereto. See Garza v. State, 138 Tex.Cr.R. 403, 136 S.W.2d 861. Nor does it show that the remarks of the district attorney were not reasonable deductions from the evidence. In the absence of such a...