Le Marr v. State, 29204
| Decision Date | 30 October 1957 |
| Docket Number | No. 29204,29204 |
| Citation | 308 S.W.2d 872,165 Tex.Crim. 474 |
| Parties | Alvie LE MARR, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Doss Hardin, Fort Worth, Ross Hardin, Dallas, for appellant.
Henry Wade, Dist. Atty., James K. Allen, William F. Alexander and A. D. Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, 50 years.
The State has moved to strike the statement of facts on file in this Court because the same was not filed in the trial court until the 104th day after notice of appeal and therefore filed too late for our consideration under Articles 759a, sec. 4, and 760d, V.A.C.C.P.
Appellant's attorney, in answer to such motion, has furnished this Court with an affidavit in which he states that the statement of facts was completed by the court reporter on or about May 24, 1957. He does not tell this Court how he knew that the statement of facts was completed on that day nor does he state that he saw the same in its completed condition.
The pauper's oath was filed on June 3, which was the 89th day. On June 4, the 90th day, the court ordered the reporter to prepare and furnish the statement of facts.
The court reporter has furnished this Court with an affidavit in which she swears that the statement of facts was not completed on June 4 and could not have been completed on such date.
Since the appellant's attorney's affidavit does not inform this Court how he knew the statement of facts was completed at an earlier date, we must accept the affidavit of the reporter that the same was not completed on June 4, which was the last day for filing the same.
We must hold that the appellant has not exercised due diligence when he waited until the 89th day to file his pauper's oath and that the statement of facts was filed too late.
The judgment appearing regular and nothing being presented for review, the judgment is affirmed.
On Appellant's Motion for Rehearing.
DICE, Commissioner.
In view of additional affidavits presented by appellant we have concluded to consider the statement of facts on file in the cause.
The evidence is undisputed that the deceased, Samantha Ellen Lemarr, who was the appellant's wife, was shot and killed on the day in question around 8:00 o'clock a. m. at her home in the City of Dallas.
The state's testimony shows that a short time prior to the killing the deceased came to the home of Mrs. Josephine Herron, a neighbor who lived nearby, and after leaving her purse and a $5 bill returned to her home. Some ten minutes later Mrs. Herron's attention was directed to loud talking at the Lemarr residence where she could see the movement of people in the front room and she then heard four shots in rapid succession and two minutes later heard one single shot. In approximately five minutes appellant came to Mrs. Herron's residence and told her, 'Ellen shot me; call the police', which she did. Thereafter, Officer Kelly arrived at the scene and found the appellant sitting in a chair inside the front door of his house holding his left arm which had been shot. Appellant stated to the officer that his wife had shot him and that he had taken the gun away from her, knocked her down and shot her. A 38 calibre pistol lying in the chair beside appellant was observed by Officer Kelly which the testimony shows contained five empty shells and one live bullet. Upon being asked where his wife was, appellant stated that she was lying on the floor in the bedroom, whereupon Officer Kelly proceeded to the bedroom and found the body of the deceased lying on the floor and also found an open suitcase and some boxes containing ladies clothing in the room.
The evidence shows that the deceased's body contained four bullet wounds of entrance and that the cause of death was gunshot wounds to the head and heart.
It was the state's theory that the appellant shot his wife when she was preparing to leave him and then shot himself in the arm so as to make it appear that she had shot him.
As a witness in his own behalf appellant denied that his wife was preparing to leave him on the morning in question and stated that she shot him. Appellant testified that when his wife fired the shot, he grabbed her by the hand; that a struggle ensued in which he ended up with the gun but that he did not remember what happened. Appellant further testified that if he shot his...
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