McClure v. State

• Decision Date: 25 March 1925
• Docket Number: (No. 8635.)
• Citation: 272 S.W. 157
• Parties: McCLURE v. STATE.
• Court: Texas Court of Criminal Appeals

272 S.W. 157

McCLURE v. STATE.

(No. 8635.)

Court of Criminal Appeals of Texas.

March 25, 1925.

Rehearing Denied May 13, 1925.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

F. M. McClure was convicted of murder, and appeals. Reversed and remanded.

J. M. Harris and Lea, McGrady, Thomason & Edwards, all of El Paso, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life. The evidence is not materially variant from that outlined in the report of the former appeal in 95 Tex. Cr. R. 53, 251 S. W. 1099, save that upon the present trial the appellant and the witness Don Macomber testified.

According to the appellant, he became acquainted with the deceased about 18 months before her death, which occurred in March, 1922. She was employed by him and represented herself as Miss Louise Frentzel, though some time later she told him that she was a married woman; that her husband's name was James Thomas. Appellant owned an automobile. His wife, whom he had married in January, 1922, was in Cleveland, Ohio, and he on frequent occasions took the deceased riding in the car. She borrowed several sums of money from him and placed some Liberty bonds in his custody. The money was paid to him a short time before her death. Appellant was preparing to go to Baltimore, Md., to live, and had secured a railroad ticket. He had given the deceased a small pistol and possessed another himself. On the evening on which the homicide occurred, they went riding together in the appellant's car. From the actions of the deceased, she was infatuated with the appellant, though no improper relations were sustained. Describing the tragedy, appellant said:

"After I stopped the car I put my arm around her and says, `Louise, I am going away in the morning and came out here to tell you goodbye. I am going to Baltimore to meet Mrs. McClure there.' She flew up in a rage and said, `No; you are not going; I won't let you go; I am going to kill myself.' She had the little gun in her hand, and after a struggle I got the little gun away from her and threw it in the back of the car.

"She was awful hysterical; she was mad; she was crazy. * * * I looked down and she had her hand in the pocket of the car door and was pulling the big gun out. * * * I finally got hold of the revolver, and she said, `I will kill you too.' I finally jerked it away from her over her shoulder. * * * I did not intentionally shoot her on the night of March 13th; it happened just as I said; while I was struggling with her for the gun."

Cross-examination:

"I have stated that at the time Louise Frentzel was killed I had hold of the pistol. I am not exactly sure what part I had hold of; I had hold of some part trying to pull it from her hand; I think I had hold of the back of the barrel; my hand was over her hand. At the time the shot was fired I was jerking the pistol away from her. Louise had hold of the pistol at the time the shot was fired, and my hand was over hers when I grabbed it."

Don Macomber testified in behalf of the state. According to his testimony, he was 19 years of age. He knew nothing of the death of the deceased until he heard that her body was found. He knew that the automobile of the appellant was placed at his home on Monday night. According to the witness, he left his home and went to see the appellant. They went together to the appellant's car, which was parked at a place which the witness described. The two then took the car to the home of the witness, backed it into the garage and closed the doors. The witness observed some blood upon the car that night, and on the following morning a cape and a pair of gloves belonging to the deceased and a small pistol were found in the car. The witness endeavored to wash the blood from the car.

On his cross-examination inquiry was made of the appellant concerning his connection with an arson case against one Haas in the state of Ohio. Objection was made and a bill of exceptions reserved. Appellant was asked by state's counsel if he had not gotten immunity in the arson case for testifying against Haas. In reply he said that he was a witness for the state in that case but had not gotten immunity; that Haas was indicted and the trial took place in 1919; that the property insured belonged to Haas but was held by the appellant in trust, and that for a like reason the policy of insurance was made payable to him; that no insurance was collected upon the building.

In qualifying the bill the learned trial judge adverts to the fact that the appellant had come to the Western country in November, 1918, and remained until January, 1922, and had not since he came West been in the state of Ohio, in which state, in 1916, he pleaded guilty of the offense of larceny of an automobile in two cases and was confined in the reformatory. We fail to discern either the relevancy or the cogency of the matters to which the learned trial judge refers. No connection is shown or intimated, so far as we have perceived from the evidence, between the larceny charges in 1916 and the arson trial in 1919. The fact that the appellant had been convicted of larceny was, under the well-defined rules of evidence, admissible under the facts of the present record for the sole purpose of affecting his credibility.

If there had been a legal charge of arson against the appellant, proof of it might have been used against him for a like purpose, namely, to affect his credibility, but for no other purpose. The evidence adduced manifestly does not show that he was charged with arson in any legal procedure. The only evidence upon the subject is that of the appellant, in which he categorically says that he was not charged with arson. The precedents in this state are specific and numerous supporting the proposition that:

"Proof of mere accusations against or evidence of particular acts of misconduct is not admissible to affect the credibility of a witness. Defendant or any other witness can only be impeached as to other offenses by showing that he has been legally charged with a felony or with a misdemeanor imputing moral turpitude."

See McAfee v. State, 17 Tex. App. 139; Ware v. State, 36 Tex. Cr. R. 599, 38 S. W. 198; Branch's Ann. Tex. P. C. § 168; and numerous cases there collated.

The rule permitting the impeachment of a witness by showing that he has been charged in a legal manner with an offense is an exception or departure from the general rule of evidence. See Boon v. Weathered, 23 Tex. 675; Kennedy v. Upshaw, 66 Tex. 442, 1 S. W. 308. The exception has never, within our knowledge, been extended to embrace a transaction such as that under consideration, where it is sought by evidence of certain conduct of the accused to authorize the jury to infer that the appellant was subject to a legal charge of an offense involving moral turpitude. The refusal of the court to so extend the rule is emphasized by cases in which it has been held that, though one may have been charged by complaint with a felony or misdemeanor involving moral turpitude, that fact is not usuable against him even for impeachment purposes, where the grand jury, having an opportunity to do so, has failed to merge the complaint into an indictment. Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105; King v. State, 67 Tex. Cr. R. 63, 148 S. W. 325; Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 362; Matthews v. State, 80 Tex. Cr. R. 177, 189 S. W. 491; Sapp v. State, 80 Tex. Cr. R. 370, 190 S. W. 489; Howard v. State, 80 Tex. Cr. R. 591, 192 S. W. 770, L. R. A. 1917D, 391; Criner v. State, 89 Tex. Cr. R. 228, 229 S. W. 860.

From what has been said it follows that in the opinion of this court the learned trial judge fell into error in receiving the testimony touching immunity from the prosecution of arson which has been quoted above and to which timely and pertinent objections were addressed. Referring to the immunity matter, the court gave to the jury an instruction in paragraph 8 of its charge, from which we quote:

"* * * You are instructed that the evidence introduced as to the alleged facts in connection with said offense of arson were submitted before you solely for the purpose of enabling you to ascertain, if they do so, whether or not the defendant had been granted immunity from prosecution for the said offense. And, unless you believe from the evidence, beyond a reasonable doubt, that the facts introduced in evidence prove such immunity from prosecution for such offense, you will not consider the questions or answers pertaining thereto for any purpose whatever. If you...