Lamb v. State

• Decision Date: 26 June 1914
• Docket Number: (No. 3204.)
• Citation: 169 S.W. 1158
• Parties: LAMB v. STATE.
• Court: Texas Court of Criminal Appeals

169 S.W. 1158

LAMB v. STATE.

(No. 3204.)

Court of Criminal Appeals of Texas.

June 26, 1914.

On Motion for Rehearing, October 28, 1914.

Appeal from District Court, Tarrant County; James W. Swayne, Judge.

John Lamb was convicted of murder, and he appeals. Affirmed.

Mays & Mays and Lattimore, Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder and his punishment assessed at 30 years in the penitentiary. This is a companion case of the same appellant, recently decided. 168 S. W. 534.

Appellant complains that a new trial should have been granted because, in effect, the jury arrived at its verdict by lot; that is, a quotient verdict. The court heard evidence on this issue which is shown by one of appellant's bills. Mr. Branch, in his Criminal Law (section 844, subd. 2) says:

"If jurors take the average as a means of securing an expression as to their views in respect to the punishment (making an experiment), and with no agreement in advance to be bound by the result, or if agreement is broken, the court's finding of no error will not be disturbed on appeal. Leverett, 3 Tex. App. 217; Cravens, 55 Tex. Cr. R. 521, 117 S. W. 156 ; Goodman, 49 Tex. Cr. R. 191, 91 S. W. 795; Keith, 56 S. W. 629; Pruitt, 30 Tex. App. 159, 16 S. W. 773; Barton, 34 Tex. Cr. R. 613, 31 S. W. 671; Hill, 43 Tex. Cr. R. 586, 67 S. W. 506."

The trial judge was justified in holding, as he did, that the verdict in this case was not an illegal one under this line of authorities.

Appellant has several bills of exceptions to the admission of certain testimony. We will give it first on this subject in full. Omitting the number, style of the case, and the court below, it is:

"Be it remembered that upon the trial of the above styled and numbered cause Mrs. John Guest, widow of deceased, was called to the stand by the state and was asked if, prior to the time that defendant killed John Guest, during her husband's entire lifetime, she ever heard him make any threat of any kind or of any character whatever against John Lamb, and answered that she did not. To this the defendant objected as an attempt to prove the character of the deceased; because it relates to a purported statement by deceased long prior to the killing, and because defendant does not rely upon any threats as a provocation for the killing. The court overruled the objection, and defendant then and there excepted, and now tenders this his bill of exception and asks that same be approved, ordered filed, and made a part of the record herein; which is accordingly done.

                  "Approved Apr. 1st A. D. 1914
                  "Jas. W. Swayne, Judge 17th District Court
                               "Tarrant County, Texas."
                

Clearly, under the rules established by the Supreme Court when it had criminal jurisdiction and by this court upon its organization, in accordance with the statute, this bill is so meager and insufficient as to neither require nor authorize this court to consider the question sought to be raised. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 326, 140 S. W. 1112; sections 857 and 1123, White's Ann. C. C. P.; Best v. State, 164 S. W. 996.

However, we have considered the admissibility of the evidence attempted to be raised by all of his bills, and in our opinion the evidence was properly admitted.

The evidence objected to by these various bills is along these lines:

First. As to what was said and done by appellant and by deceased from the time they first came in view of each other at which time the killing occurred, and that the appellant when leaving the scene of the killing immediately after it had two six-shooters, one in each hand, and when the constable attempted to arrest him for killing deceased he resisted arrest and shot the constable. All this testimony, we think, was clearly admissible as res gestæ. Girtman v. State, 164 S. W. 1010, and cases cited; Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; Wiseman v. State, 32 Tex. Cr. R. 454, 24 S. W. 413; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Johnson v. State, 30 Tex. App. 420, 17 S. W. 1070, 28 Am. St. Rep. 930; Tooney v. State, 8 Tex. App. 452; Elmore v. State, 78 S. W. 520; Stanley v. State, 44 S. W. 519; Ency. of Ev. p. 615; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 168.

Second. Appellant by his cross-examination of the state's witnesses — he introduced none — attempted to show an intense hostility by deceased against him which had continued for quite a length of time, so much so as to estrange his mother and sister with whom he lived from him, and they sought protection by leaving his home and going to deceased's and that deceased in effect denied him access to his mother and sister; that deceased carried arms — guns — for the purpose of killing him and deceased was seeking to kill him and have others to do so, all growing out of what he claimed was the deceased's attempt to control the property and prevent his mother from dividing hers with him and turning it over to him. We do not attempt to give the particulars of these matters, nor any of them in detail. The state undertook to meet appellant's contentions and the evidence brought out by him along this line by having various witnesses testify of their own knowledge that the deceased had no ill will against appellant and, in effect, denying all of appellant's claimed acts of hostility and claimed intentions and plans to kill him. When he raised these questions, and by his examination of the witnesses on cross-examination introduced evidence tending to support his contentions, the state had a right to meet it by the proof it introduced to show the contrary.

Manslaughter was not in the case. There is no evidence whatever even suggesting adequate cause.

Appellant objected to the court submitting provoking a difficulty, at all, and made many objections to the charge itself. From a careful study of the evidence we believe provoking a difficulty by appellant for the purpose of killing the deceased was raised by the evidence and the court correctly submitted it. None of appellant's objections to the court's charge in this respect show any reversible error.

The court did not err in overruling appellant's motion to quash the indictment. The grounds of the attack of the indictment in this case we regard as more than ordinarily hypercritical. One objection is wherein in the indictment it is alleged that appellant killed the deceased with malice "aforethought" the "t" at the end of the word was omitted. Taking the indictment as a whole, there can be no question but that the leaving off of the "t" in the spelling of said word could in no possible way have misled appellant nor be fatal to the indictment.

We have given this case careful investigation and study, and in our opinion no reversible error is pointed out.

The judgment is affirmed.

On Motion for Rehearing.

On July 6, 1914, appellant filed his motion for a rehearing upon the sole ground that this court erred in deciding that the trial judge was justified in holding that the verdict was not arrived at by lot. This motion was submitted October 7, 1914. On October 20th he filed what he terms a supplemental motion for new trial. In that he urges the same ground as in his original motion, and, in addition, that the trial court erred in not submitting manslaughter. To sustain his contention in his original motion he copied extracts from but two of the seven jurors who testified before the trial judge as to how the verdict was reached. We quote what he there says these two jurors testified:

He says W. R. Mays swore:

"After we all agreed `guilty,' then we had several ballots; each man put down a number of years and divided by 12 for the purpose of arriving at a verdict. Every man put his number down on a piece of paper, add that up and then divided by 12. We had agreed to abide by whatever result that figured and if it had figured out 99 years, then we would have been compelled to abide by it. I abided by the result after we divided by 12 because I had already agreed to be bound by it — that was the agreement. I abided by the result after we divided by 12 because I had already agreed to be bound by it — that was the agreement."

In his supplemental motion he now quotes this in addition to what he says said juror swore:

"I was for a lower term than 30 years. * * * The reason I did agree to a 30-year verdict myself was because I felt like I had agreed beforehand that I would abide by it. I would not have abided by a 30-year verdict if I had not agreed to it before, and felt myself morally bound; the only reason I returned a verdict of 30 years was because I had agreed to abide by the result when we divided by 12."

The other juror whom he quoted in his original motion was Huffman, whom he says swore:

"It was agreed, before we balloted on that, that each put down what he thought defendant ought to receive and divide by 12 and knock off the odd years either for or against and that would be our verdict and that would be the verdict of the jury."

In his supplemental motion, in addition he quotes what he says the Juror Ritchie swore:

"It was already agreed before we divided by 12 that we would abide by the result whatever that might be, plus or less the odd years as the case might be; if it came to 32 years and 6 months, we agreed to give him the benefit of the months. I do not mind stating that I voted for 25 years the first and the last time. The reason that I came back to 30 years was, I had agreed to abide by the result after we divided by 12. * * * If it had been 50, I would agree to it after dividing by 12 because I had already agreed to do so."

The statement of facts in his bill of exceptions on this subject is 25 typewritten pages Of course, he did not undertake to copy all...