McCoy v. State

• Decision Date: 06 April 1927
• Docket Number: (No. 10482.)
• Citation: 294 S.W. 573
• Parties: McCOY v. STATE.
• Court: Texas Court of Criminal Appeals

294 S.W. 573

McCOY v. STATE.

(No. 10482.)

Court of Criminal Appeals of Texas.

April 6, 1927.

Rehearing Denied May 11, 1927.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Marion County; R. T. Wilkinson, Judge.

Gus McCoy was convicted of murder, and he appeals. Affirmed.

E. B. Lewis, of Center, and J. M. Singleton, of Jefferson, for appellant.

P. G. Henderson and J. H. Benefield, both of Jefferson, and Sam D. Stinson, State's Atty., and Robt. M. Lyles, 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.

Early in the morning of Monday the 28th of July, 1924, J. W. Rowell, Sr., a man of about 90 years of age, while out in his lot, received blows upon the head which rendered him unconscious, in which condition he remained until his death, which soon followed from the effect of the blows. The state took the position that the appellant was the offender and that the motive was robbery. Appellant interposed the defense of alibi, claiming to have been in the town of Shreveport, La., at the time the deceased was injured.

From bill No. 1, as qualified, it appears that at the previous term of court a motion to quash the indictment was made upon the ground that there was no indictment returned. Upon the hearing of the motion it was shown that the indictment was regularly returned into court, but that the clerk failed to place his file mark upon it. The court overruled the motion and directed that the clerk enter his file mark nunc pro tunc. There was no error in overruling the motion when it was renewed upon the present hearing. Cauthern v. State (Tex. Cr. App.) 65 S. W. 96; Skinner v. State, 64 Tex. Cr. R. 84, 141 S. W. 231.

Appellant interposed the plea of former jeopardy, based upon the ground that the court, on a former occasion, after impaneling the jury and the plea had been entered, had discharged the jury on account of the sickness of one of the jurors. This is authorized under certain circumstances by article 680, C. C. P. 1925, and from the bill it appears that the juror was sick and that his discharge was with the express consent of both appellant and his counsel. Therefore, no error is shown. Arcia v. State, 28 Tex. App. 198, 12 S. W. 599; Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188; Torres v. State, 91 Tex. Cr. R. 387, 238 S. W. 928.

The complaints in bills Nos. 10 and 11 of the failure to receive certain evidence and to submit the issue raised by the plea of former jeopardy to the jury show no error, for the reason that the court properly held that the plea itself raised no issue of fact.

An application for a continuance was made and overruled, as shown by bill No. 3. Apparently it was a subsequent application. As qualified, the bill shows that such material witnesses as were absent and for whom diligence had been used appeared upon the trial. According to the bill as qualified, the court did not abuse its discretion in refusing to grant the motion.

It appears from bill No. 4 that state's counsel asked the witness T. D. Rowell the following question:

"State whether or not you know that purse had been found."

The witness answered:

"No sir; it was never found. He always changed his purse when he changed his clothes, and when he would go out to work and change his clothes he would change his purse, and when he changed back he would change his purse because he always had negroes around and he always changed his purse."

Objection to this question and answer was made upon the ground that it was not admissible unless it was shown that appellant knew the custom of the deceased. In qualifying the bill the court stated that it was received in connection with other evidence upon the issue of robbery as the motive for the offense. The bill is quite meager, and, as qualified, shows no error. It fails to give any of the surrounding facts such as would enable the court to determine its merits. Especially is this true from the accepted statement in the qualification that there were other facts introduced on the issue of motive. Nothing in the bill discloses whether the appellant was acquainted with the other facts or what they were, nor does it appear that the appellant did not know of the habits and customs of the deceased. This omission is not supplied by the mere recital of the ground of objection. Some further remarks on the subject are made in the discussion of bill No. 7.

From bill No. 5, as qualified, it appears that for many years it had been the custom of the deceased to go to the barn very early every morning to feed his horse; that he was found early in the morning coming from the direction of his lot, wounded and unconscious. The bucket in his hand was crushed and his fingers bruised, and upon the side of his head there were deep wounds. The condition of the bucket and his hand indicated an effort to ward off the blows. From some of the testimony the suggestion came that his injury was due to a kick of the horse. It was the theory of the state that the wound was inflicted by a stick in the hands of the appellant. At the barn was found a long stick with bloodstains upon it. The hat worn by the deceased at the time of his injury was exhibited to the jury over the objection of the appellant. The hat was without blood stains, but its condition was such as, in the opinion of the learned trial judge, tended to solve the controverted issue mentioned, namely, whether the blow was due to a kick of the horse or the striking with a stick by the appellant. It is well settled that under such circumstances the testimony mentioned was not improperly received. See Branch's Ann. Tex. P. C. § 1855, and the precedents cited; also Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782.

It appears from bill No. 6 that, while T. D. Rowell was testifying in behalf of the state, he was asked on cross-examination by appellant's counsel, the following:

"Q. Do you know a party named G. W. Roberts? A. Yes, sir.

"Q. Isn't it a fact that you had employed him as a detective?"

The objection to this question was sustained. According to the bill, the witness would have given an affirmative answer and would have stated that Roberts had been active in the prosecution. From the bill it appears that appellant contended that the materiality of this testimony consisted in the fact that Roberts' wife had given testimony favorable to the state and that the answer expected would have borne upon the animus of the wife of Roberts. In qualifying the bill, the court said that he believed the testimony was later admitted on the trial. This qualification would seem to nullify the bill, if it otherwise had merit. However, it appears that Roberts was not a witness in the case. Moreover, the procedure of the nature mentioned is of doubtful validity. If Roberts had testified or his wife had testified, the inquiry of either might with propriety have been made. So far as the record shows, the inquiry might have been available as bearing upon the animus of the witness Rowell. However, the bill fails to show that he gave any damaging testimony against the accused, and, further, it affirmatively appears that the court was advised that the testimony was desired for a different purpose and not to discredit the witness Rowell. As the matter is here, we think it shows no error, at least, no material or hurtful error.

From bill No. 7 upon the subject of the custom of the deceased, it appears that the witness named above was asked by state's counsel:

"Q. Do you know anything about your father collecting money? A. Yes, sir; I do.

"Q. How did he do it? A. Well, I settled with him on the 1st of every month. I paid he and myself off the first."

Objection was made upon the ground that it was wholly immaterial. This was not admissible until it was shown that the appellant had knowledge of it. The remarks touching bill No. 4 are also pertinent to this one. See Murff v. State (Tex. Cr. App.) 281 S. W. 1077; Coulson v. State, 102 Tex. Cr. R. 8, 277 S. W. 135; Baxter v. State, 81 Tex. Cr. R. 234, 194 S. W. 1107; article 2237, Vernon's Rev. Civ. Stat. 1925; article 667, Vernon's Tex. C. C. P. vol. 2, p. 364, note 23. Besides, the fact that it was the custom of the deceased to possess money and carry his purse in his pocket, and its absence at the time he was found after the injury might, under some circumstances, have been very cogent testimony upon the issue suggested in the qualification of bill No. 4. See Moehler v. State, 98 Tex. Cr. R. 238, 265 S. W. 553; Lovel v. State, 93 Tex. Cr. R. 615, 248 S. W. 349. Apparently it was admissible as tending to rebut the theory that the deceased was injured by the kick of a horse. In the absence of something in the bills showing that the peculiar circumstances were such as to render the testimony inadmissible, the presumption must be indulged that it was properly received. See Bozanno v. State, 60 Tex. Cr. R. 507, 132 S. W. 777; Nowells v. State, 100 Tex. Cr. R. 476, 273 S. W. 561; Dover v. State, 102 Tex. Cr. R. 121, 277 S. W. 675.

Bill No. 8, complaining that the court permitted the recall of a witness after the state had closed its evidence in chief and before the appellant had finished with the introduction of his testimony, shows no error. This was within the discretion of the trial court, and the bill shows no abuse of it. The same may be said of the complaint in bill No. 13 of allowing the state to introduce in rebuttal evidence which could have been introduced in opening the case. Article 642, C. C. P., 1925; Barnard v. State, 87 Tex. Cr. R. 365, 221 S. W. 293; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548; Johns v. State, 98 Tex. Cr. R. 127, 263 S. W. 313.

According to bill No. 9, in support of his theory of alibi, appellant claimed to have assisted in taking Annie May Smothers to the Charity Hospital in Shreveport, La., for treatment on Sunday night preceding the homicide on Monday...