McClellan v. State

• Citation: 40 S.W.2d 87
• Decision Date: 20 May 1931
• Docket Number: No. 14364.,14364.
• Parties: McCLELLAN v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W.2d 87

McCLELLAN v. STATE.

No. 14364.

Court of Criminal Appeals of Texas.

May 20, 1931.

Rehearing Denied June 24, 1931.

Commissioners' Decision.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Hugh McClellan was convicted of murder, and he appeals.

Affirmed.

J. D. Willis, of Waco, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

The conviction is for murder; punishment, twenty years in the penitentiary.

The state's testimony shows that the appellant killed his paramour, with whom he had lived in adultery off and on for some time. Appellant admitted the killing, but placed in evidence the issue of self-defense.

There are no exceptions or objections to the court's charge, nor are there any special requested charges.

Bill of exception No. 1 complains of the action of the court in sustaining the state's objection to a question by appellant to the witness Joe Rutland as to whether or not he had ever had occasion to arrest the deceased, as to whether he knew her general reputation as being a peaceable, law-abiding citizen, and as to her general reputation in the community for chastity and virtue. It is observed that the bill of exception fails to show what the answer of the witness would have been.

We take the following from the case of Ross v. State (Tex. Cr. App.) 29 S.W.(2d) 381, 382: "A bill of exception taken to the refusal of the court to permit a witness to answer a question should show what the answer of the witness would have been. Branch's Annotated Penal Code, § 212. The general reputation of deceased for being a law-abiding citizen was not in issue. It is the rule that, where self-defense is an issue, the accused may prove the general character for violence of his adversary for the purpose of showing who probably began the difficulty. Such proof is admissible whether threats are involved or not. Branch's Annotated Penal Code, § 2095; Daniels v. State, 58 Tex. Cr. R. 569, 126 S. W. 1153. Where the accused seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of such threats, and, where proof of threats of the character mentioned have been made, it is competent to introduce evidence of the general character of the deceased. The inquiry, however, may not extend further than the question as to whether the deceased was a man of violent or dangerous character or a man of quiet and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made. Article 1258, P. C.; Denson v. State, 107 Tex. Cr. R. 649, 298 S. W. 604, 605; Ball v. State, 113 Tex. Cr. R. 58, 18 S.W.(2d) 641."

The fact that the general reputation of deceased for being law-abiding or her general reputation in the community for chastity and virtue might be good or bad, and whether or not she had ever been arrested, would not seem to involve characteristics that would aid in determining whether the accused was justified in assaulting her.

Bill of exception No. 2 complains of the introduction by the prosecuting attorney of a fountain pen device identified by appellant as having been in his possession and of the asking by said attorney as to whether the device would shoot like any other pistol. The objection was that same was immaterial, irrelevant, and prejudicial, because the evidence showed deceased was killed by a 45 Colt pistol, and the introduction of said device could have no bearing on the case.

A bill of exception complaining of the admission of evidence must set out such facts or so much of the evidence as will verify the truth of the objections interposed. Enough of the surrounding facts and circumstances must be stated to enable the appellate court to determine the merits of the bill and the correctness of the ruling involved and to show that the evidence was inadmissible and the ruling was erroneous and hurtful to the cause of the appellant. See 4 Tex. Jur. § 216, for collation of authorities.

Bill No. 3 complains of the state's counsel asking appellant whether or not he had embezzled some money from a Mr. Caldwell because same had been investigated by a grand jury and no indictment returned, and because the question was prejudicial and misleading. The court qualified the bill in substance to the effect that the appellant testified on direct examination that, while working for Mr. Caldwell, he sold a load of produce for which he did not turn in the money for which offense he stayed in jail seven or eight days when he got out on bond, but for which he was never indicted. The court further qualified the bill to the effect that the state's counsel was then permitted to examine the witness upon the matters about which he had testified on his direct examination. No exception was taken to said qualification, and, as thus qualified, it was clearly within the province of the state's attorney to cross-examine appellant on the matters already brought out by his own counsel.

Bill of exception No. 4 complains of the action of the court in sustaining the state's objection to testimony offered by appellant to the effect that the husband of deceased was employed and able to take care of deceased, because such matter was material on the theory of mitigation and extenuation, and because it showed that deceased was a married woman, when part of the testimony introduced had showed that the reason for the homicide was because deceased had informed appellant she was going to quit and go to a "sweetie." This bill is subject to the same criticism as bill of exception No. 2.

Bill of exception No. 5 complains of the action of the court in sustaining the state's objection to the introduction of a picture of the deceased taken in an abbreviated bathing suit, for the reason that appellant wanted to show the jury what she looked like. We fail to see wherein this evidence would be admissible upon any issue in the case.

Bill of exception No. 6 complains of the action of the court in sustaining the state's objection to the testimony of appellant's witness, Mitchell Shakespeare, former husband of deceased, to the effect that deceased was a violent and high-tempered person. The trial court qualified the bill to the effect that the witness on further examination testified that he did not know her reputation in respect to the above inquiry, and, as so qualified, the bill shows no error.

Bill of exception No. 7 complains of the action of the court in sustaining the state's objection to the questioning to appellant's witness, W. B. Mobley, a constable of McLennan county, as to deceased's general reputation for virtue and chastity, for the reason that the same was material and was admissible in mitigation and extenuation of the defense. The question involved in this bill of exception has been disposed of in the discussion of bill No. 1.

Bill of exception No. 8 complains of the action of the court in overruling appellant's objection to the introduction by the state, after both sides had rested and after the court had prepared his charge and same had been submitted to counsel, of new witnesses. The bill further shows that the said witnesses in behalf of the state were introduced before the argument of the cause began. Said action by the court was permissible under article 643, C. C. P., which provides that the court shall allow testimony to be introduced at any time before the argument of the cause is concluded, if it appear that it is necessary to a due administration of justice. There is nothing in this bill to show that the admission of said evidence was not necessary to the due administration of justice, and it is within the judicial discretion of the court whether testimony shall be permitted before or during the...