Moon v. State, 30936

• Decision Date: 25 November 1959
• Docket Number: No. 30936,30936
• Parties: Nearvel MOON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 312

331 S.W.2d 312

169 Tex.Crim. 14

Nearvel MOON, Appellant, v. STATE of Texas, Appellee.

No. 30936.

Court of Criminal Appeals of Texas.

Nov. 25, 1959.

Rehearing Denied Jan. 27, 1960.

Leon Lusk, Houston, King C. Haynie, Houston, for appellant.

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

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

The evidence reflects without conflict that the appellant came upon two men and a boy who were target shooting in a rural section of Harris County and asked permission to fire their pistol. When he was given the pistol, he turned it on the three and marched them to a nearby woods where he shot and killed all of them after having taken their money. Following this, appellant masked himself and left the scene, encountering some young women on horseback at whom he made threatening gestures with his rifle. Upon his return home, appellant secreted the pistol, which he had used in the homicides, and the money in a closet and hid the billfolds which he had taken from the deceaseds in a chimney.

Appellant admitted the killings, the pistol used and the money and billfolds taken were recovered as a result of his oral confession. Also appellant's written confession was introduced without objection.

The sole defense was that of insanity. In support thereof the appellant called Dr. Wagner, a psychiatrist, who had examined appellant while in jail and who had interviewed members of appellant's family. He classified appellant as a 'borderline mental defective' with a 'schizoid personality' but stated he did not consider appellant to be 'psychotic' or 'insane.'

By various witnesses it was shown that the moral level in appellant's home and family was extremely low.

The State countered this with the testimony of two psychiatrists and various lay witnesses who testified that in their opinion the appellant, though retarded, was sane.

Under appropriate instructions the jury resolved what conflict there was in the evidence against the appellant, and we find sufficient support for their verdict in the record.

On appeal the appellant relies entirely upon the alleged error of the trial court in failing to grant his various motions for change of venue and relies upon several cases from this Court and the recent opinion of the Supreme Court of the United States in Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900.

We are furnished no statement of facts showing what evidence was heard by the Court at the hearing on the motion, as is required by Art. 760c, Vernon's Ann.C.C.P., but, because of the penalty here involved, we will discuss appellant's motion. If we were authorized to accept as true the allegations in his motion, it reflects that 139 veniremen responded to the summons, that 33 were excused for 'various legal excuses', that after all challenges had been made twenty of the remaining sixty veniremen were excused from jury duty for the reason that they expressed an opinion as to the guilt of the defendant. We pause here a moment to note that appellant attached to his motion a scratch sheet listing the entire venire and we find thereon only 16 names which have the word 'opinion' opposite them. Be this as it may, we are informed by the motion that appellant had not exhausted his challenges.

We shall endeavor to point out distinctions between the case at bar and Irvin v. Dowd, supra.

1. In Irvin, 355 jurors were called and 233 of that number had formed the opinion that the defendant was guilty. In this case 139 responded to the summons and 16 or 20 of that number had expressed an opinion as to the guilt of appellant.

2. In Irvin the accused's counsel exhausted all of his peremptory challenges, while in the case at bar he did not do so.

3. In Irvin four jurors who were selected after his challenges had been exhausted stated that they had an opinion that Irvin was guilty. In the case at bar there is an entire absence of any allegation or proof that any juror who served in appellant's case had an opinion as to appellant's guilt at the time he was selected.

It has been the consistent holding of this Court, in Lopez v. State, 158 Tex.Cr.R. 16, 252 S.W.2d 701; Kizzee v. State, Tex.Cr.App., 312 S.W.2d 661; and Slater v. State, Tex.Cr.App., 317 S.W.2d 203 and cases there cited, that in order to require a reversal for refusal to change venue, there must be a showing that prejudice against the accused found its way into the jury box at his trial. We reverse where such a showing is made. Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239...