McCue v. State

• Decision Date: 03 December 1913
• Docket Number: (No. 2495.)
• Citation: 170 S.W. 280
• Parties: McCUE v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 280

McCUE v. STATE.

(No. 2495.)

Court of Criminal Appeals of Texas.

December 3, 1913.

On Motion for Rehearing, February 25, 1914.

Dissenting Opinion, November 4, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Frank McCue, alias Mud McCue, was convicted of murder in the first degree, and he appeals. Affirmed.

Walker & Williams, of Dallas, Clarence Merritt and W. R. Abernathy, both of McKinney, and C. F. Greenwood, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of the crime of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life.

That the person who killed Earl Mabry on the night in question was guilty of murder in the first degree there can be no question. The question presented by this record is: Was appellant one of the participants in the crime? Roy Pringle on this trial says that appellant struck deceased in the back of the head with an iron pin, and then cut his throat with a pocketknife. Deceased had been knocked in the head, and his throat had been cut, and some 17 other wounds had been inflicted on him. Roy Pringle was an accomplice, admitting that he stabbed deceased several times, and the court so instructed the jury. The contention that there is no testimony corroborating the accomplice, tending to connect appellant with the crime, cannot be sustained. A knife was found near the dead body. Sis Hamp positively identifies this knife as the knife of appellant. This tended very strongly to connect the appellant with the crime, and is sufficient corroboration of the accomplice in and of itself to sustain the conviction.

However, it may be stated that there are many other circumstances in the record, corroborative of the accomplice, tending to connect the appellant with the offense. The contention that some one other than the accomplice must have seen appellant at or near the scene of the crime, and must have seen him strike the blows, to be sufficient as corroborative testimony, is not the law. If the state had such testimony, it would not need the testimony of the accomplice. When the deceased was found dead near the railroad dump, his throat cut from ear to ear, and a knife found by his side that is identified as the knife of appellant, the corroboration is sufficient. It is true that appellant assails the testimony of Roy Pringle and Sis Hamp. Witnesses swear that their reputation for truth and veracity is bad, and it is sought to impeach them by proving contradictory statements, yet all this was for the jury, and we suppose it was as ably argued in the trial of the case as it is here presented, yet the jury finds appellant guilty.

Appellant presents a strong alibi. The witnesses tie their memory to circumstances that would seem to render the defense indisputable, yet the state introduces an equal or greater number of witnesses who testify as positively to facts that would render the alibi untrue. This was a question for the determination of the jury, and the court's charge on alibi is not subject to the criticisms contained in appellant's motion for new trial, for it is drawn in language frequently approved by this court. Hines v. State, 40 Tex. Cr. R. 26, 48 S. W. 171; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122; Harris v. State, 31 Tex. Cr. R. 416, 20 S. W. 916; Stevens v. State, 42 Tex. Cr. R. 175, 59 S. W. 545.

On Sunday morning, the 21st day of September, 1907, the body of a young man was found on the south side of the railroad dump on west of the Texas & Pacific Railway bridge, on the road from Dallas to the cement plant, dragged into some high weeds. The skull was crushed in the back of the head; there were 16 or 17 knife wounds in the body, and the head had been nearly severed from the body. Witnesses say only about two inches of skin at the back of the neck connected the head with the body. An iron coupling pin, bloody, was found near the body. A knife was also found, with the big blade open; the point being broken. A red leather grip was also found, and in this grip were certain letters, a time book, etc. To prove that the body was that of Earl Mabry, the sister, who never saw the dead body, was permitted to testify that the letters found in the grip were written by herself and her mother to her brother Earl; that the writing in the time book was in her brother's handwriting; that the hat found near the dead body was her brother's hat; that the watch found on the body was her brother's watch. The defendant objected to the introduction of the letters and the time book in evidence on various grounds, but as the identity of the deceased was an issue in the case, and the state was required to prove that the dead body was that of Earl Mabry, the letters and time book and other articles mentioned were admissible on the issue of identity of deceased. This question was specifically passed on in the case of Campbell v. State, 8 Tex. App. 90, and the valise and contents held admissible on the question of identity of deceased. See, also, Wharton's Crim. Law, § 941, and cases there cited.

However, it was improper for the prosecuting officer to state in his argument that the time book and certain items therein showed that the deceased was a hard-working boy, and that said book showed the deceased had worked all the month of August and up to the 18th day of September, and that the book showed he had $40 in his possession. The time book was not admissible to show these facts, if it did so show, but was admissible only on the question of the identity of the deceased, and the objection to that portion of the argument of state's counsel should have been sustained.

But is the error such an error as will call for a reversal of the case? The fact that deceased had on Saturday evening some $50 or $60 is amply proven by other witnesses, and there is no testimony that he did not have money on his person, so the amount of money he had was not an issue in the case. That he had, just before being killed, been at work near Mineola, was amply proven by other witnesses, and that he came to Dallas Friday night was proven by defendant, by Charles Moore, and by Mrs. Wilky. Then, too, the issue in the case, as made by the testimony offered in behalf of appellant, was not whether the deceased had been murdered for the purpose of robbery, but that appellant was not the person who did the killing — that he was at home at his father's Saturday and Saturday night, and could not have been the person who killed the deceased. That deceased had been foully murdered in a brutal way was shown by all the testimony adduced on the trial, and as the remarks of the prosecuting officer complained of above were not such as could or would cause the jury to find that appellant was the person who did the killing, nor had any influence in regard to that issue, the remarks do not present reversible error.

Gertrude Wilson was the twenty-sixth witness introduced by the state, and she testified:

"In 1907, I remember about hearing of the dead body of a man being found over west of the Trinity river, and I heard about it Sunday evening after the killing, and the way I heard about it was by hearing them talk about it. I knew Frank McCue at that time. Oh, I hadn't known Frank McCue very long. I saw him at Beasley's several times, and had heard him talk there, and heard him talk at Risa Beasley's and several others, and heard him talk at Risa Beasley's on the Saturday night before I heard of this killing the next Sunday evening. I am acquainted with Frank McCue's voice. I heard some parties talking that Saturday night upstairs in Risa Beasley's room, and I took one of the voices to be Frank McCue's."

It will be recalled that the defense of the defendant was an alibi — that he was at home all Saturday night. When this witness was offered, the defendant objected to her testimony on the following grounds:

"(1) Because the evidence that would be put before the jury, and by and through the answer of said questions by said witness, would be immaterial, inadmissible, irrelevant, and incompetent, in that it would not establish nor tend to establish any allegation in the indictment, nor any material issue in the case.

"(2) Because the testimony that would go to the jury through the medium of said witness' answers to said questions would have only the effect to prejudice the jury against the defendant."

The court did not err in overruling the objections made, for it is manifest by the testimony of this witness, if true, that appellant was not at home on Saturday night, but instead was at Risa Beasley's. This evidence was on a most material issue in the case—to prove that his alibi was not true.

The testimony of Ike Owens was reproduced. He had testified that in 1907 he worked for T. H. Moore as a bartender, and that at 6:30 on Saturday evening (the evening of the killing) he saw appellant, Pringle, and Mabry in Moore's saloon; that the three drank together in the saloon, and appellant (McCue) said that Mabry was a stranger in the town and they were showing him around; that Mabry paid for the last round of drinks, and had $50 or $60 in his purse; that he (Owens) changed a $5 bill for him. Mr. De Berry testified that Owens was dead; that he saw his dead body, and attended the funeral. The court did not err in overruling the objections made. Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440.

When the defendant had offered his testimony to prove an alibi — that he was at his father's home in Oak Cliff all day Saturday and Saturday night — among other witnesses the state introduced Amos Clem, who testified, among other things, that on that Saturday he was in Dallas, and saw appellant on Main street in Dallas; that —

"at the time I was passing him, a young fellow passing by said, `Hello, McCue, where are you going?' and the one...