McGowen v. State

• Citation: 290 S.W.2d 521,163 Tex.Crim. 587
• Decision Date: 29 February 1956
• Docket Number: No. 27794,27794
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Parties: Yancy A. McGOWEN, Appellant, v. The STATE of Texas, Appellee.

Page 521

290 S.W.2d 521

163 Tex.Crim. 587

Yancy A. McGOWEN, Appellant, v. The STATE of Texas, Appellee.

No. 27794.

Court of Criminal Appeals of Texas.

Feb. 29, 1956.

Rehearing Denied May 9, 1956.

Sam L. Harrison, San Antonio, for appellant.

Dan Walton, Dist. Atty., Eugene Brady, Thomas D. White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The offense is murder; the punishment, death.

The indictment charged that the appellant killed Herbert Schwartz by cutting and stabbing him with a knife, and further alleged a prior conviction of a capital offense for the purpose of enhancing the punishment under Article 64, V.A.P.C.

The state's evidence shows that the deceased and three companions were seated at a table in the 2K Sandwich Shop in the City of Houston between 1:30 and 2 o'clock a. m., on the morning of October 17, 1954. After they were seated at the table the appellant and a man by the name of Falconnier and two women came in and seated themselves at an adjoining table. Shortly after the appellant and Falconnier reached their table they made some insulting remarks which were directed at those seated at the deceased's table. One of such remarks was in regard to 'the Jew bastards,' and which referred to the deceased and his three companions. After the remarks were made, the deceased turned towards appellant's table and told the appellant and Falconnier to shut up or get out. In a minute or two the appellant and Falconnier arose from their seats and stood up over the deceased and began striking and beating him. Appellant was standing behind the deceased, who was seated, and pounding him on the left side of the chest. After the deceased began bleeding freely in the region of the chest it was observed that appellant had a knife in his hand. When one of the deceased's companions, Gary Dale, and the night manager of the place, John M. Hughes, attempted to stop the appellant he cut them with a knife.

Appellant then backed to the front door holding the knife in his hand and went to his car and drove away. When he was arrested a short time later he had in his hand an open switch blade knife with a blade 3 1/4 inches long.

The deceased was immediately carried to the Herman Hospital and upon examination it was found he had a wound in the left chest and that the left subclavian artery had been cut and about three-fourths severed. The deceased died the following day, after undergoing surgery, as the result of loss of blood and complications which set in from the injury to the blood vessel.

The state offered in evidence certified copies of the indictment, judgment and sentence in a certain cause, No. 6271, styled The State of Texas v. Y. A. McGowen in the District Court of Cherokee County, wherein the defendant in said cause was, on the 3rd day of February, 1937, convicted for the murder of Mary McKinney and sentenced to life imprisonment in the penitentiary.

Proof was made by the state that the appellant was the same person who was convicted in said cause and that the conviction was a final conviction.

Appellant did not testify or offer any witnesses in his behalf.

Appellant insists that the court erred in overruling his application for a change of venue after refusing to hear testimony in support of the same. No error is shown in the court's ruling as the application was insufficient because it was not supported by the affidavits of two credible persons, as required by Article 562, V.A.C.C.P. Lacy v. State, 113 Tex.Cr.R. 363, 111 S.W.2d 264; and King v. State, 143 Tex.Cr.R. 27, 152 S.W.2d 342.

Complaint is made of the action of the court in overruling appellant's first application for continuance or postponement which was not sworn to by the appellant but by his attorney. The application not being sworn to by the appellant as required by Article 545, V.A.C.C.P., was by the court properly overruled. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643.

In the court's Bill of Exception No. 89 appellant contends that he was limited in his voir-dire examination of the prospective jurors because of the court's examination and interrogation of the jurors as to their qualifications.

The bill sets out the court's interrogation of two of the veniremen and reflects that the court tested their qualifications by inquiring of them if they had formed any opinion as to the appellant's guilt or innocence; whether they had any conscientious scruples against the infliction of the death penalty for the punishment for crime; inquired of the veniremen if they could follow the instructions of the court on the presumption of innocence and that the indictment was no evidence of guilt, and the courts's instruction that the prior conviction alleged in the indictment could not be considered by them as any evidence of guilt in the case on trial.

The court certifies in the bill that neither of the prospective jurors whose interrogation is shown therein were impanelled on the jury; that it was not certified by the court that he resorted to any lengthy interrogation of such prospective jurors, nor that he asked any prospective jurors any question that could or might have prejudiced them against the appellant. The court states in the bill that the method being employed by the appellant in examining the prospective jurors was causing an unnecessary length of time and seemingly purposely wasting the time of the court; that his only purpose in interrogating the jurors was to conserve the time of the court and of the prospective jurors, and to afford appellant a fair trial. The court further certifies in the bill that he did not limit the questioning of the prospective jurors by appellant, and permitted him to interrogate each prospective juror fully and to ask each juror any proper question he desired.

The right of an accused to examine a prospective juror on voir-dire examination is unquestioned. As a general rule, great latitude should be allowed a party interrogating a venire in order to enable his counsel to determine, in an intelligent manner, the desirability of exercising his right of a peremptory challenge, and is such a right as should not be unnecessarily limited.

Under the facts certified in the bill it appears that the appellant was permitted to fully interrogate each prospective juror and to ask any proper question he desired. Having been afforded this right, we overrule appellant's contention that he was limited by the court in his examination of the prospective jurors. The authorities relied upon by the appellant are cases where the court refused to permit certain inquiries to be made of prospective jurors on voirdire examination, and are not here controlling.

Appellant insists that the prior conviction in the District Court of Cherokee County, which was alleged in the second count of the indictment for enhancement purposes, was void and not a final conviction because the court, in pronouncing sentence, did not give application of the indeterminate sentence law and for the further reason that the judgment and sentence were not signed by the judge.

This attack upon the prior conviction was made during the trial by motion to quash the indictment, objection to evidence, and by motion in arrest of judgment. Appellant also filed an application for a writ of habeas corpus which was based upon his contention that the prior conviction alleged in the indictment was void. When the case was called for trial and appellant was called upon for an announcement he informed the court of the filing of the application for the writ of habeas corpus and requested the court to hear the application and determine the matters raised therein before calling upon him for an announcement in the case.

The prior conviction in the District Court of Cherokee County was not void because the court, in pronouncing sentence, failed to apply the indeterminate sentence law. Hall v. State, 158 Tex.Cr.R. 243, 254 S.W.2d 523. Nor did the failure to apply the indeterminate sentence law affect the finality of the prior conviction. The indeterminate sentence only relates to the time required to be served in discharge of the punishment assessed. The failure of the judge to sign the judgment, sentence or minutes of the court did not affect their validity. Hurley v. State, 35 Tex.Cr.R. 282, 33 S.W. 354; Epps v. State, 130 Tex.Cr.R. 398, 94 S.W.2d 441; and Move v. State, 153 Tex.Cr.R. 449, 220 S.W.2d 651.

We overrule appellant's contention that the court should have postponed the trial until he had heard and disposed of the application for the writ of habeas corpus.

The court did not err in admitting in evidence the certified copies of the indictment, judgment and sentence in the case in the District Court of Cherokee County over appellant's objection that the official records from the District Clerk's office were the best evidence. Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997; and Hooper v. State, 160 Tex.Cr.R. 441, 272 S.W.2d 103. Nor did the court err in permitting the state to introduce in evidence and read to the jury the indictment in the prior case. Nabors v. State, 137 Tex.Cr.R. 465, 131 S.W.2d 962. The official penitentiary records, including appellant's finger prints, were admissible in evidence on the issue of appellant's identity as the same person who was convicted in the prior case alleged. Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182.

The indictment alleged that the appellant did kill Herbert Schwartz by cutting and stabbing him with a knife. In his charge the court instructed the jury to convict the appellant if they believed that he did kill Herbert Schwartz by 'either or both of' the means alleged in the indictment.

Appellant excepted to the use of the words 'either or both of' in the charge and moved that they be deleted on the ground that their insertion would have a tendency to lessen the burden of proof on the state.

Under the facts, we fail to perceive any...