O'Keefe v. State

• Decision Date: 16 December 1942
• Docket Number: No. 22217.,22217.
• Citation: 167 S.W.2d 1035
• Parties: O'KEEFE v. STATE.
• Court: Texas Court of Criminal Appeals

167 S.W.2d 1035

O'KEEFE v. STATE.

No. 22217.

Court of Criminal Appeals of Texas.

December 16, 1942.

Rehearing Denied February 3, 1943.

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

Helen O'Keefe was convicted of murder, and she appeals.

Reversed and cause remanded.

Croom & Croom, of Houston, for appellant.

Dan W. Jackson, Cr. Dist. Atty., and A. C. Winborn, A. H. Krichamer, and O'Brien Stevens, Asst. Cr. Dist. Attys., all of Houston, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Helen O'Keefe was convicted of the murder of J. C. Franklin and assessed a penalty of twenty-five years imprisonment in the State penitentiary by a jury in Harris County and she brings this appeal.

The indictment alleges that on about the 12th day of November, 1941, appellant killed J. C. Franklin by shooting him with a gun. Another count alleges that he was killed by means unknown to the grand jurors.

The State's case and the constituent elements necessary to establish the offense charged are supported only by circumstantial evidence. Appellant is a young woman who had been employed by a loan company, of which Franklin was manager, for a period of eleven years. She is shown to have been a trusted employee of the company. In his absence she had charge of the business and assisted in its conduct even while he was present. There is no evidence of any disagreement between them at any time and no circumstance which would indicate that he was dissatisfied with her or that the relationship as employer and employee was any different from what it had been for several years past. The business was incorporated some twenty years ago and had a paid-up capital stock of $90,000. At the time of the alleged tragedy the assets consisted solely of notes to the amount of $19,000, with a liability of $5,000 for borrowed money from the bank. Several audits of the business had been made in past years which seem to have been unsatisfactory to Franklin and no details of them are in the record. It appears that another audit was being considered which was not completed at the time of the trial and the voluminous record in the case gives few details of the business other than that above stated.

For some weeks prior to November 12, appellant had sought at different times to engage the services of certain characters to beat Franklin up, break his legs or do something that would put him in the hospital for several months. This evidence is given in the record in great detail, some of which is corroborated by evidence which seems to be reliable. To some of these men she made the statement that it would do Franklin an extremely great favor. Again she cautioned that she didn't want him killed, she only wanted him put in the hospital. This evidence was introduced as part of the State's case and came from the men so approached. One of these men sold her a pistol, which will be hereinafter considered, but we find no evidence of any threat on her part to use it on Franklin and there is no indication that she did. She gave other reasons for wanting to buy it.

For several months prior to November 12, appellant had been keeping company with Louis Rabouin, an ex-soldier, who was about nineteen years of age. He had an automobile and she was with him or had his car very nearly every day. He testified as a witness in the case but does not seem to have assisted in her plan to have the injury inflicted on Franklin.

It is the theory of the State that appellant murdered Franklin under the circumstances given and that her motive in doing so was to hide a shortage which she had created in the business by forging checks on company funds and securing the money for herself. At least we find no other motive indicated by the State's evidence or its brief. There is no evidence offered by the State, however, to show that she expected to come in charge of the business; that Franklin had ever complained to her about the forgeries; that he knew of what had taken place or that any record had been made which could not be discovered by other interested directors or stockholders as well as by Franklin. That the removal of Franklin from his business would help appellant hide her unlawful transactions with the company funds is not supported by the evidence.

A brief summary of the very lengthy statement of facts will include only that which is pertinent to the issues necessary to a discussion of the law involved. On November 11, appellant and her young friend, Rabouin, had spent the holiday together driving out into the country, at which time they found themselves on what appears to be an old boat landing on the San Jacinto River about eighteen miles from the heart of the city, a spot which appears to be semi-secluded. Occasional landings were made from the river and witness and appellant reached it by a worn out roadway which at one time was probably used by heavy traffic. At this point their car became stalled in the sand and they spent several hours extricating it. During the time, they practiced shooting with the pistol which she had purchased. Early the next morning, according to the statement made by her to his family, she met Franklin, at his suggestion, soon after he left his home for the office and drove with him into Hermann Park where they consulted for a short time about a trip he said he was taking that day to Austin. The length of this stay together was indefinite and the purpose is not explained. She never reported to the office during the day, leaving it with a young girl who was inexperienced and had not been given any responsibilities in the daily affairs of the office. At about 4:30 in the afternoon, a man in a boat came to the landing place which had been visited on the previous day by appellant and her companion and found a car burning there. He concluded that a human body was in the burning car and reported it to the officers, a number of whom testified as witnesses in the case. The car proved to be a coupe belonging to Franklin and the one in which he left his home to go to his work that morning. A small portion of a human body, variously estimated to weigh between fifteen and twenty pounds, was found in the car and the State seeks to prove that it was the remains of J. C. Franklin. Much of the evidence in the case centers about this issue, which is a necessary fact to be proved before the jury would be authorized to return their verdict of guilty. It will be necessary further for the State to show that Franklin met his death by the criminal act of another; that appellant was present and assisted in the act or that she was performing some part in connection with it in a manner that would make her a principal in the crime.

On the question of identity, it may be admitted that the car belonged to Franklin and was the one used by him on that date. Among its ruins was found a portion of a human body insufficient to be identified as his except by the circumstances which surrounded it when a search of the ruins had been completed. A watch was found identified as his, keys and a keyholder with his name on it, a carpenter's rule, a Catholic tag, two Catholic medals, spectacles, a pin, a buckle, a knife and cuff buttons, all identified as being his property. A piece of burned brown cloth was believed to be a part of his suit. A piece of a shoe was of the same style and fashion as a pair sold to him. One natural and seventeen false teeth were found, concerning which the testimony, much controverted, nevertheless indicates that they could have been the teeth of Franklin, though nine false teeth and one natural tooth were entirely missing. It can hardly be said in the state of the evidence that the dentist who made them positively identified them as the teeth of Franklin. They could have been his teeth. Of the human flesh found, there was a much burned small portion of a lung and a very small part of the flesh about the bones of the pelvis, including a protected portion of the lower bowels, a piece of a skull approximately the size of the palm of one's hand, some small pieces of bone and the pelvis protected by the flesh, together with a small portion of the large bone in the upper part of each leg. All the rest of the bones were missing. The evidence shows it was a portion of a male person of approximately the age and size of Franklin. An X-ray specialist who had made a picture of the pelvis bone of Franklin in June, 1941, examined the remains after they were exhumed some time after the death and took another picture at about the same distance and angle from the pelvis as that taken of Franklin in his lifetime. After describing the two pictures and pointing out their similarity in size and shape, he gave his opinion that they were identical.

The defense takes the position that it was not the body of Franklin, that he is not dead and that the whole transaction was a frame-up to aid in the escape of Franklin and for the collection of an insurance policy made payable to his company in the amount of $35,000 on his life, with $25,000 additional for accidental death. They produced a witness, R. C. Maxwell, who qualified to testify on the subject and he described the method by which human bodies are cremated, making the assertion that bones will not burn to destruction, that after being submitted to enormous heat they are then crushed and reduced to a powder form. The effect of this evidence was that an entire human body was not burned in the car to the extent described and that it would have been impossible to apply heat to a body in an open space or in a car that would consume the amount of missing bone. The State had on the witness stand several doctors undoubtedly authorities on the subject, some connected with the medical college, yet no effort was made to refute this testimony other than to discount the witness. It is significant that the State was in position to refute the claim of the scientific...