Moore v. State
| Decision Date | 14 June 1950 |
| Docket Number | No. 24813,24813 |
| Citation | 232 S.W.2d 711,155 Tex.Crim. 147 |
| Parties | MOORE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Brown & Russell, of Mt. Pleasant, Woodrow Edwards, of Mt. Vernon, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was convicted in the District Court of Titus County, Texas, for the offense of murder under the provisions of Art. 802c, Vernon's Ann.P.C. The jury assessed his punishment at two years confinement in the penitentiary, and declined to recommed suspension of sentence.
The accident occurred on U. S. Highway 67 in Franklin County and prosecution was had in Titus County where the injured party Johnnie Kathryn Sellers died.
The count of the indictment upon which the case was submitted to the jury reads as follows: 'And the Grand Jurors aforesaid: Upon their oaths aforesaid do further present in and to said court that heretofore on or about the 3rd day of September, 1949, and anterior to the presentment of this indictment, in the County of Titus and State of Texas, Allen Lee Moore, did then and there unlawfully drive and operate a motor vehicle, to-wit, an automobile upon a public highway in Franklin County, Texas, to-wit, United States Highway Number 67, while then and there intoxicated and under the influence of intoxicating liquor, and while so driving and operating said automobile, did through accident and mistake kill and murder Johnnie Kathryn Sellers by driving said automobile into and against the automobile occupied by the said Johnnie Kathryn Sellers, thereby and therewith causing her death, the said Johnnie Kathryn Sellers dying in Titus County, Texas.'
Appellant, by motion to quash and by exceptions to the court's charge, complained that the allegations of the indictment are contradictory, confusing and uncertain. He insists that the indictment alleges that appellant in the County of Titus and State of Texas operated an automobile upon a public highway in Franklin County--thus creating an impossible situation. The trial court properly overruled the motion to quash and the exceptions to the charge.
It seems clear from the indictment as a whole that in Titus County, appellant was being charged with murder because of injuries accidently inflicted by him upon Johnnie Kathryn Sellers in Franklin County while driving on the named highway in an intoxicated condition and venue was shown by the allegation that death occurred in Titus County. See Art. 195, Vernon's Ann.C.C.P.
Appellant next complains of the overruling of his motion for new trial because of 'certain new witnesses' who he says would testify that appellant was not intoxicated, and who would corroborate appellant's testimony as to cattle being in the road at the time of the accident.
It is shown that other witnesses, who gave similar testimony in behalf of appellant, were impeached by proof of prior contradictory statements. Appellant, for such reason, contended that he should be granted a new trial in order that he might have the benefit of the testimony of the witnesses Mrs. Joyce Larkin Cook, Paul Bryant, Wallace Hunnicutt and Mrs. Fay Hunnicutt.
Mrs. Cook was subpoenaed as a witness and was available, but was excused by appellant's counsel after she had informed them that she thought she detected the odor of whiskey on appellant's breath. She testified on the hearing of the motion for new trial, and expressed the opinion that appellant on the night of the accident, when brought to the hospital, was not intoxicated.
A subpoena was issued for Paul Bryant, who was temporarily out of the State at the time of the trial. Appellant knew of his absence and made no request for postponement or continuance because thereof.
Wallace Hunnicutt testified on the hearing that he was related to appellant by marriage; that he went immediately to the hospital on learning of the accident, and spent much time with him on that night and on the...
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Moore v. State
...Tex.Cr.App., 246 S.W.2d 180; Allala v. State, Tex.Cr.App., 250 S.W.2d 207; Hicks v. State, Tex.Cr.App., 251 S.W.2d 409; Moore v. State, 155 Tex.Cr.R. 147, 232 S.W.2d 711; Henderson v. State, 154 Tex.Cr.R. 376, 227 S.W.2d 821; Hughes v. State, 106 Tex.Cr.R. 550, 293 S.W. 575. Other cases ref......
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Roberson v. State
...of any juror or other person in position to have known the facts. Such a motion has been held to be insufficient. See Moore v. State, 155 Tex.Cr.R. 147, 232 S.W.2d 711; Henderson v. State, 154 Tex.Cr.R. 376, 227 S.W.2d 821; Fielden v. State, Tex.Cr.App., 216 S.W.2d 198; Toms v. State, 150 T......
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Burris v. State, 27218
...so provides. Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214; Fielden v. State, Tex.Cr.App., 216 S.W.2d 198; Moore v. State, 155 Tex.Cr.R. 147, 232 S.W.2d 711. In my opinion, the rules stated are neither applicable nor controlling here, for the trial court did not overrule appellant's mo......
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Ramirez v. State
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