McClure v. State

• Decision Date: 21 March 1923
• Docket Number: (No. 7374.)
• Citation: 251 S.W. 1099
• Parties: McCLURE v. STATE.
• Court: Texas Court of Criminal Appeals

251 S.W. 1099

McCLURE v. STATE.

(No. 7374.)

Court of Criminal Appeals of Texas.

March 21, 1923.

Rehearing Denied June 13, 1923.

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

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

J. M. Harris and Davis, Jackson & Fryer, all of El Paso, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of El Paso county of murder, and his punishment fixed at confinement in the penitentiary for life.

All of the matters and things appearing in this record relate to occurrences taking place in the city of El Paso, in El Paso county, Tex. At 6 o'clock p. m. on March 13, 1922, appellant parted from Miss Julia Isner at her boarding house, telling her that he would see her about 8:30 that night. He was in his Lexington car at the time. At about 9 o'clock that night one Cornette, a service car driver, testified that he answered a call and went out to Sam's Place, at Piedras and Alameda streets, and got appellant and Don McComber there, and brought them to the Orndorff Hotel, down in the business part of the city. Appellant paid him $1 for the trip. Don McComber's mother testified that she lived on Durazno street, about a block and a half from Piedras street. They had no car, but a garage. Mrs. Pollard lived next door. On the night of the homicide, Mrs. McComber further stated that something like 8 o'clock her son Roy left the house. Witness thought he came back in half an hour. When he came back, he used the telephone, which was in her room. She did not know the number he called, but he was talking about an automobile, called an automobile out there somewhere in that part of town, said something about Sam's Place, and asked for a car to come out there — that a party wanted to be taken to town. Don then came to witness and asked for a pair of scissors, and she told him where to find a pair. She found these scissors later in her bathroom; heard water running in the bathroom when Don came and asked her for the scissors. She further testified that there was an outside entrance to her bathroom from the back yard, where the garage was. Don left home after she gave him the scissors, and witness did not think he was absent this time more than half an hour. She further testified that Don was around the garage the next morning, and was inside the garage.

About 10 o'clock on the night of the homicide appellant reported to police headquarters that his Lexington car was stolen; that it was taken from in front of his hotel. He told a number of other persons that night and the next morning that said car had been stolen. The roommate of appellant, who was also his brother-in-law, testified for the state. He said that he did not see appellant from 1 o'clock on the Monday of the killing, until about 11 o'clock that night, when witness went to the room at the hotel occupied by appellant and himself. Appellant was there in his pajamas, sitting on the bed. He told witness his car had been stolen between 7:30 and 8:15 p. m. This witness reluctantly admitted that he had sworn on the examining trial of appellant that the latter told him that night to say upon inquiry that he (witness) was in their room between 7:15 and 8:30, and that he saw appellant there. When this witness awoke the next morning, appellant had already dressed and gone. Mrs. Jackson swore that she saw appellant at his hotel a little before 10 o'clock on the night of the homicide. He said to her that he had been up in his room all the afternoon, and came down to get his car, and found some one had stolen it. Mr. Williams testified that he, representing the insurance company that had insurance upon appellant's car, talked to appellant about said car the next morning after the homicide, and that appellant told him that he left his car in front of the Lee Hotel, where he lived, and went to supper, and he knew the car was there at 7:15 and at 8:30; that he was up in his room reading. Witness asked him how he knew it to be there; if he had seen it. Appellant replied, "No;" that his brother-in-law, Van Bergen, had come in at 7:15, and the car was there then, and said his brother-in-law had gone out again at 8:30, and it was still there; and that he (appellant) had gone downstairs in the neighborhood of 10 o'clock, and the car was gone, and that he had reported it to the police. This witness further testified that he asked appellant to write him out a description of the car and was called to the telephone, and when he came back appellant had not written said description, and told witness he was so nervous he could not write, and that witness would have to write it himself, which he did. On Thursday or Friday of that same week the Lexington car of appellant was found in the garage at Mrs. McComber's place. Blood, found on analysis to be human blood, was on the back of the front seat, also on the cushion, and had run down under the cushion and filled little bolt holes with blood; also that there was some blood on the rear right-hand door and the rear right wheel. This witness said: "You could see some one had tried to wash it off." The officer who found the car said he received the information from which he located it from appellant; that appellant told him he and Don McComber put the car in the garage on Monday night.

Appellant was preparing to leave El Paso, and he and his brother-in-law had purchased tickets, one for Cleveland, Ohio, and one for Baltimore, Md., and had them in their possession at the time of the homicide. On Friday preceding the homicide on Monday, deceased had drawn a check for $375 on her savings account in a bank in El Paso in favor of appellant, and he had cashed it the same day. On Tuesday morning after the homicide, appellant told Mr. Lee, his landlord, that he wanted to pay him what he owed, and took out of his purse and offered Mr. Lee a $20 bill; the amount due being only a few dollars. Mr. Lee testified that he saw other money, one $50 bill at least, and witness thought three other such bills, besides some of other denominations.

It was shown that appellant and Miss Frentzel, deceased, were on terms at least of friendly intimacy, and that he frequently took her out in his car, there seeming to be an understanding as to when and where he should meet her to go on such trips. He had never been at her home; neither her father nor mother having ever seen him. Deceased was a stenographer at the Lander Lumber Company. Their telephone was Main 282. Monday afternoon appellant called her there, and she replied that she would meet him at the usual place. A witness who heard appellant's end of this conversation said that he fixed the hour of meeting at 7 o'clock. Shortly after this hour Miss Frentzel dressed at her home, putting on a brown suit and an aviator's leather vest to protect her from the wind, and also a cape. She left, telling her mother that she would be back by 9 o'clock. She never came back alive. At 8:37 or 8:40 her still warm body was found near a street car line in El Paso; how near to her home or to the other places testified about in this record is not shown. She had been shot in the back of the head, the bullet entering just about the hair line, and this bullet, which was taken from the wound, was said to be a 38-caliber. She had no money on her person when discovered, and her wrist watch was gone. Her cape was later found in a woodshed on the McComber place, under a tin such as ordinarily goes under stoves, on top of which tin was a quantity of wood and coal. A little pistol, the property of deceased, was in evidence and identified, and Roy Pollard, who lived next to the McComber place, testified he first saw this in possession of Don McComber a few days after the homicide, and that Don gave it to him to keep for him. Roy gave it to his mother, and she to Mrs. McComber, who threw it into an ash can, from which it was later rescued. Appellant had been making efforts to sell his car without success.

Appellant's first complaint is of the submission in the charge of the court of the law of principals. After giving what seems to be a fair definition of principals, the court instructed the jury in substance that, if this killing was done by some one other than appellant, but he was present and, knowing the unlawful intent of such other person, aided by his acts the person actually committing the homicide, he should be convicted. The converse of this proposition was also stated. This paragraph of the charge was excepted to on the ground that there was no evidence calling for the submission of the law of principals. We regret we cannot agree with learned counsel. The case was one of circumstantial evidence. That the pistol of deceased was in the possession of Don McComber shortly after the homicide is not disputed. Nor is the further fact that her cape, worn by her on that night, was found under a pile of fuel in the woodshed where Don lived. The car in which apparently the homicide was committed was found in the McComber garage. Don McComber left his mother's house about 8 o'clock. He returned somewhere in the neighborhood of half an hour later. The warm, bleeding body of Miss Frentzel was found at 8:37 or 8:40 that night. Don McComber came back home and phoned for a car. He got his mother's scissors and went into the bathroom. A door led from the bathroom into the back yard, where the garage was. Appellant told the officer that he and Don put the car on which was found the blood in that garage that night. Without dispute it is shown that appellant and McComber rode together in the service car to town after the hour of the homicide.

The record points only by its circumstances to the guilty participation of one or two parties in the homicide. There is no suggestion of the connection of any other person therewith, save McComber and appellant. We cannot agree that...