Mitchell v. State

• Decision Date: 21 February 1951
• Docket Number: No. 25014,25014
• Citation: 156 Tex.Crim. 128,239 S.W.2d 384
• Parties: MITCHELL v. STATE
• Court: Texas Court of Criminal Appeals

Page 384

239 S.W.2d 384

156 Tex.Crim. 128

MITCHELL v. STATE.

No. 25014.

Court of Criminal Appeals of Texas,

Feb. 21, 1951.

Rehearing Denied May 23, 1951.

Percy Foreman, Houston, for appellant.

A. C. Winborn, Criminal Dist. Atty., E. T. Branch, Asst. Criminal Dist. Atty. (now deceased), Spurgeon E. Bell, Special Pros., Houston, George P. Blackburn, State's Atty., Austin, for the State.

WOODLEY, Commissioner.

The appeal is from a conviction for the murder of Jean Mitchell, the wife of appellant, the jury having assessed the death penalty.

The deceased met her death as a result of a pistol bullet fired into the top of her head approximately five inches above the left eye and four inches above the left ear. Her body was found in the bathroom of the living quarters adjoining appellant's cafe.

Appellant and the deceased had been separated for a time, but the living quarters in which the killing occurred was their home.

Appellant testified that the pistol was discharged while held by the deceased in her left hand, and during a struggle in which he was attempting to prevent her from shooting him with the pistol. He undertook to demonstrate before the jury how, during the scuffle over the pistol, the deceased was shot in the top of her head while they were both standing on their feet in front of the commode, he being behind her with his arm around her. Also he testified that after the pistol was discharged it fell on the floor and he picked it up and threw it on the bed in the adjoining room; that he then left the bathroom at which time the deceased was still standing up; that the saw her hit the back wall and just sit down on the commode; that he then ran to the cafe to try to get help for his wife.

The court's charge to the jury submitted appellant's right to defend himself against the attack of his wife, and fully charged upon appellant's theory that the killing was the result of an accident.

Roy Caperton, a state witness, testified that he was the driver of the ambulance which called for the body of the deceased, and assisted in removing her body from the commode; that he examined the body prior to its removal and that the dress of deceased was raised above her buttocks as though she were in the act of using the commode; that he noticed that the water in the commode was discolored, and gave the appearance of having urine mixed with the water. He further testified: 'I removed the body from the commode. In removing the body I had occasion to find out the condition of the woman's clothes when I moved her off of the commode. Her dress was pulled up just to about her hips, and her underclothes were down just barely above her knees. Her private parts and buttocks were exposed to the commode where she was sitting. Her underclothes, or her panties, were around her knees. * * * She was sitting there on that commode in that position with her head leaning to the left against the wall with blood coming down the wall. She had on glasses.'

He also testified: 'I noticed the wound on the woman's head. As far as I know there weren't any powder burns around the wound, but there was on the wall just above her head.'

Bill of Exception No. 13 complains of the action of the trial court 'in refusing to permit proof as to witness Roy Caperton's character; illegal occupation; the fact that he was a panderer; the fact that he had given various hot checks, and that he had stolen merchandise in Corpus Christi.'

The qualifications to this bill show that the trial court declined to certify that he had refused to permit proof as to the witness' character, illegal occupation, or the fact that he was a panderer.

The qualifications further certify that the witness, on cross-examination, admitted that he had been filed on for the offense of swindling by complaint in October, 1947.

The trial court was correct in his ruling that specific acts of misconduct not culminating in a prosecution were not available for impeachment purposes. See Ballew v. State, 97 Tex.Cr.R. 325, 260 S.W. 1045; Myers v. State, 149 Tex.Cr.R. 301, 194 S.W.2d 91; Branch's Ann.P.C., p. 102, Sec. 168.

Bill of Exception No. 2 relates to the following testimony of Police Officer R. W. Hope, Jr.: 'That he arrived at the scene, together with his partner, uniformed police officer C. C. Outman, about 12:40 noon on December 16, 1948, and at a time when the defendant Steve Mitchell was talking over the telephone. That the defendant stated he had just killed his wife. That he had shot her. That said police officer walked around the bed in the front room and found a pistol lying on the bed and asked the defendant what did he shoot her with, this pistol, and the defendant said 'Yes,' and the witness then picked up the pistol, unloaded it and it had five shells and an empty hull and that the defendant then said to the police officer that the reason he shot the deceased was she had been running around with some truck driver and had sued him for a divorce and half of what he had and he just shot her and that the defendant then said to said witness that he had a right to kill the deceased and then asked such witness and his partner, C. C. Outman, if they did not think that he had a right to kill the deceased * * *.'

According to this bill, objection was made at the time and in advance of the offering of such testimony, the ground of objection being that the defendant was in custody, and the testimony being in the nature of a confession was inadmissible because the provisions of art. 727, C.C.P., were not complied with; that to admit such testimony would require the defendant to give evidence against himself in violation of the Constitution, and the provisions of art. 727a, Vernon's Ann. C.C.P.

The trial court's qualifications to this bill reflect that the police officers mentioned had no information as to who, if anyone, had been shot or killed nor who did the shooting, until after witness Hope heard appellant while talking over the telephone say that he had just killed his wife; shot her. The testimony of the officers Hope and Outman was referred to and made a part of the court's qualifications to the bill.

Learned counsel for appellant argues with much force that such testimony was not admissible as a part of the res gestae; that the record shows that appellant was under arrest at the time, and that the confession was not admissible under that part of art. 727, C.C.P., which reads: '* * * unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.'

As we understand this bill, appellant sought and obtained the ruling of the court on the above quoted testimony in advance of its being offered, and the trial court heard the testimony to be offered and for the purpose of his ruling accepted as true counsel's statement of the testimony he proposed to offer in support of his objection.

Counsel for appellant renewed his objection to the whole of the testimony quoted at the time it was offered, and the trial court overruled the objections.

An objection directed to the whole is properly overruled when part of the testimony objected to is admissible, or where the court was authorized to exclude only a part. See Tubb v. State, 55 Tex.Cr.R. 606, 623, 117 S.W. 858; 868; Solosky v. State, 90 Tex.Cr.R. 537, 236 S.W. 742.

We are inclined to the view that the statement testified to have been made by appellant was admissible as part of the res gestae, and also by reason of the finding of the pistol which proved to be the weapon used in the killing and which the witness stated was the weapon so used.

The officer testified that he came to the scene in response to a report that a shooting had occurred, and with no further information in regard thereto. That upon his arrival he found appellant engaged in a telephone conversation with some unidentified person, and heard him say in such telephone conversation that he had just killed his wife.

The testimony of the officer regarding this statement was without doubt admissible. Appellant was certainly not then in custody.

Bill No. 5 relates to the introduction of a written statement of Mary Allen, an employee of appellant who testified in his behalf. On direct examination, this witness testified in part as follows:

'My name is Mary Allen. I am a cook. I work at Steve's Drive-In Stand. It is known as Steve's No. 7 at the corner of Jensen and Collingsworth.'

'On December 16, 1948, I went to work around a quarter to 7 in the morning. I was supposed to get off at 4 o'clock.'

'When I saw Steve Mitchell in the kitchen he came in there and told me he was going to the market; * * *'

'At the time he told me that Mrs. Mitchell was not there.'

'After telling me to take over, Mr. Mitchell left immediately and went to the living quarters. In my best judgment it was at 12:00 o'clock.'

'After he went to the living quarters and I relieved him, Mrs. Jean Mitchell, his wife, came on the lot. It was just a few minutes after he left that she came on the lot.'

'When she came in the rear door of the restaurant she said, 'Where is Steve at' and she cursed. She cursed Mr. Steve. Mr. Steve was not there at that time. Her exact words were, 'Why ain't that damn Greek at work.' She said, 'Why ain't that God damn Greek at work.' He was not there working when she came in.

'Mrs. Mitchell then went through the dining room and went out the front door, and then she came back in. When she came back in she said, 'I am going to fix * * *' and she cursed again. She slammed the door when she came in, the front door. She then went out the back door, and slammed that door as she went out.

'When she went out the back door and slammed it I watched her from the kitchen window at the back. As she went to the living quarters she was cursing loud, and she got to...