Millikin v. State

• Decision Date: 11 May 1927
• Docket Number: (No. 10862.)
• Citation: 296 S.W. 547
• Parties: MILLIKIN v. STATE.
• Court: Texas Court of Criminal Appeals

296 S.W. 547

MILLIKIN v. STATE.

(No. 10862.)

Court of Criminal Appeals of Texas.

May 11, 1927.

Rehearing Denied June 15, 1927.

Commissioners' Decision.

Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.

A. V. Millikin, alias Avery V. Jacks, alias W. A. Coatz, was convicted of murder, and he appeals. Affirmed.

Conger & Conger, of San Antonio, for appellant.

Fred L. Blundell, Dist. Atty., and Tom Gambrell, Co. Atty., both of Lockhart, and Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

The appellant was convicted of murder and his punishment assessed at death.

The record discloses that the appellant was charged by indictment in the district court of Comal county with murdering Virginia Petty by shooting her with a gun on or about the 22d day of May, 1926; that the district judge of said county, upon his own motion, changed the venue from Comal county to Caldwell county. We infer from the record that it was the contention of the state that deceased, at the instance of appellant, went with him in her automobile from the city of San Antonio to New Braunfels, and that the appellant, on the bank of the river in or near the city of New Braunfels, after assaulting the deceased criminally, shot her and then stole her diamond ring and purse.

The appellant failed to testify in his own behalf and introduced only one witness, Paula Nelson, who testified that a man registered under the name of A. V. Millikin at the Plaza Hotel in New Braunfels on May 22, 1926, the date of the alleged homicide, about 11 o'clock at night, and requested that he be called at 4:30 or 5 the following morning.

Briefly stated, the testimony relied upon by the state for a conviction was to the effect that prior to the date of the alleged homicide the appellant was apparently negotiating with deceased, through a real estate firm, for the acquisition, either by purchase or trade, of her residence in the city of San Antonio; that on the morning of the alleged homicide appellant and deceased met at said real estate office for the purpose of closing the trade; that in the afternoon appellant communicated with deceased from said office over the telephone; and that appellant and deceased met about 5 o'clock in the afternoon and went in deceased's car from San Antonio to New Braunfels. The state's witness Givens testified that he served appellant and deceased at a New Braunfels café about 7 p. m., and that at said time, according to his recollection, deceased was wearing a ring and carrying a purse or hand bag of some kind. A car similar to that owned by deceased was seen on the streets of New Braunfels about 9 p. m. going in the direction of the river, where deceased's body was discovered on the following morning. Other witnesses testified for the state to the effect that about 11 p. m. on said night they heard the report of a gun in the direction of where deceased's body was subsequently found, and that later in the night appellant called at the house of his relative, Mrs. De Loach, and sought aid in getting his automobile started, but that he was unsuccessful owing to the fact that his relative and her husband had gone to the picture show. The state's witnesses further testified that after hearing the gun report, and at intervals thereafter, they heard an automobile "buzzing" as if an attempt was being made to start it. Additional testimony was introduced by the state showing that on the following morning, about 6 o'clock, the appellant again appeared at the home of Mrs. De Loach seeking assistance in getting his car started, and finally secured the assistance of a young man by the name of Owens, who went with appellant to the car, which was in close proximity to the place where deceased's body was afterwards found. Owens started the car for appellant, and was informed by him that he "should have gotten away from there the night before and was due to be on the border." Owens also testified that appellant appeared to be nervous and excited at this time. The appellant was seen in San Antonio about 8 or 8:30 on the morning of May 23d; he drove deceased's car into her garage and walked rapidly away from the premises. Mrs. Sampson, a witness for the state, testified that she took breakfast with appellant in San Antonio on the morning of May 23d, at his invitation and drove with him into the country in her car, during which time appellant was armed with a pistol and had in his possession a lady's diamond ring. The witness further testified that appellant insisted that she drive upon streets and roads which were not so public, and appeared to be very nervous. She also testified that she and appellant spent the night together in a San Antonio hotel, and that the landlady, before they arose on the following morning, informed appellant that the officers were inquiring for him, whereupon appellant dressed hurriedly and left the hotel, which was the last time she saw him until the day of his arrest, a week after the alleged homicide. Additional testimony was introduced by the state to the effect that appellant, a day or two after the alleged homicide, attempted to pawn for $200 a lady's diamond ring worth from $1,200 to $1,400, but when identification was demanded he left and did not return. On the morning of May 23, 1926, deceased's body was found upon the banks of the river in or near the city of New Braunfels. Her clothes were torn in front, the print of teeth could be seen on her breast, and she had been shot in the back of the head with a small caliber pistol or gun, which had been fired at close range and left powder burns on her body. There was a dark circle around one of her fingers on the left hand, such as would be made by a ring, and there were scratches on said finger. No purse was found near the body of deceased. The appellant was arrested on May 29th, a week after the alleged homicide, by the officers in the city of San Antonio, and a 38-caliber pistol was taken from his person at said time. On the handle of this weapon were certain specks which, it was learned upon analysis, had been made by blood. There was also taken from him at said time a book containing references to certain towns between San Antonio and the Rio Grande border. This is a statement of practically all the salient facts introduced in evidence.

The record contains eight bills of exception. In bill No. 1 appellant complains of the action of the court in refusing to quash the indictment, it being alleged that said indictment was not found, returned, and presented into court by a legally constituted grand jury. It appears from the bill that after an indictment had been returned by the grand jury in Comal county, and after the court in said county had discharged the grand jury for the term and this case had been called for trial, appellant's counsel moved to quash said indictment, which motion was sustained by the court. On the same day, in the evening thereof, the court issued a writ commanding the sheriff to reassemble the grand jury on the following morning. The record shows that the sheriff served all the grand jurors and that on the following morning, in response to said service, all of the grand jurors except one appeared in open court. The judge completed the grand jury by summoning and placing thereon one Walter Wiedner. It is the contention of the appellant that by reason of the court's action in placing the said Wiedner on the grand jury in lieu of the juror who failed to appear, this constituted an illegal grand jury, which rendered the instant indictment void. After a careful examination of the authorities on this question, including those cited by appellant and those relied upon by the state, we are not in accord with this contention and believe that the court was fully authorized, under the facts in this case, to complete the grand jury by adding thereto the said juror, Wiedner. Article 372, C. C. P. 1925, is as follows:

"A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of them fail to reassemble, the court may complete the panel by impaneling other men in their stead in accordance with the rules provided in this chapter for completing the grand jury in the first instance."

This article, which clearly covers the facts in the instant case, has been upheld by this court in Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 86; Ex parte Love, 49 Tex. Cr. R. 475, 93 S. W. 551; Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147; and Wright v. State, 86 Tex. Cr. R. 434, 217 S. W. 152. A distinction has been clearly drawn by this court between a situation where the grand jury has been discharged for the term and reassembled at the same term and that in which the grand jury has only been recessed during the term and not discharged. In the former instance it is held that the court has a right to complete the panel when some of the jurors fail to reassemble, while in the latter case, where the grand jury has only been recessed, this court holds that the trial court is without authority to complete the panel in the event any of the jurors fail to appear at the end of said recess. This, in our opinion, is due to the fact that in the first situation article 372, C. C. P., gives the trial court such authority, whereas in the latter situation there is no statutory provision authorizing a completion of the panel under such circumstances. There was therefore no error in the action of the court in reassembling the grand jury and adding the juror, Wiedner, thereto, under the facts above stated.

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