Moore v. State

• Decision Date: 14 November 1934
• Docket Number: No. 16933.,16933.
• Citation: 78 S.W.2d 189
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W.2d 189

MOORE v. STATE.

No. 16933.

Court of Criminal Appeals of Texas.

November 14, 1934.

Rehearing Denied January 30, 1935.

Commissioners' Decision.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

J. G. Moore was convicted of murder, and he appeals.

Affirmed.

L. H. Welch, of Breckenridge, for appellant.

Ben J. Dean, Dist. Atty., and Floyd Jones, both of Breckenridge, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for fifteen years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Charles Hoskins by shooting him with a gun.

Appellant and deceased were employed by the Humble Pipe Line Company; appellant being a "field gauger," and deceased holding the position of "telephone line man." In Chaney pump station, which was used by the Humble Company for the purpose of pumping oil, there was a testing board. By manipulating the wires on the board, trouble in the telephone system could be located. Appellant was familiar with the switchboard, having been a telegraph operator. At 7:30 o'clock on the morning of December 13, 1933, appellant telephoned from Chaney station to the office of the chief dispatcher of the Humble Pipe Line Company. A few minutes later the Chaney telephone line was reported to be out of order. Also other lines of the company were found to be out of order. Deceased was sent to Chaney station to locate the trouble. According to the dying declaration of deceased, he was shot by appellant with a .22 rifle as he entered the station; he not having seen appellant until he had shot him. Further, the statement of deceased was to the effect that appellant stated to him that he had caused the line trouble in order to bring deceased to the station.

Testifying in his own behalf, appellant denied that he caused the trouble in the telephone lines. He testified that he was engaged in the performance of his usual duties at Chaney station; that, when deceased entered the building, he told deceased that he wanted to talk to him; that deceased said, "I want to see you and I will see you with this," and reached for his hip; that he noticed that deceased had a pair of pliers about twelve inches long; that deceased raised the pliers to hit him, and that he tried to get them away from deceased; that the pliers fell out of the hands of deceased, and that, as deceased rushed upon him, he (appellant) tripped and fell; that he secured the pliers and hit deceased on the head with them; that deceased asked him to let him up, and he complied with his request; that, after letting deceased up, he (appellant) walked to a desk where he had a .22 rifle and picked the rifle up, facing deceased; that deceased grabbed the gun and tried to get possession of it; that the gun was discharged in the scuffle; that he did not know whether he (appellant) fired it or not; that he did not intend to fire it; that after deceased was shot he left the office; that he (appellant) had ample opportunity to shoot deceased as he was leaving, but he did not want to kill him, and that he did not attempt to kill him; that the matter he wanted to talk to deceased about was deceased's attentions to his (appellant's) wife; that he had observed the actions of deceased for a number of months and had reached the conclusion that deceased was attempting to impose himself upon his wife; that he had tried to secure his transfer in order that he might move his family out of the vicinity in which deceased lived; that he had asked that deceased be transferred in order that deceased might not impose upon his family; that the matter had disturbed him and caused him mental anguish.

Appellant's wife gave testimony to the effect that at times appellant had insane delusions. She denied any effort on the part of deceased to seek her company. Several of appellant's neighbors testified to conduct on the part of appellant which led them to believe that he was at times mentally deranged. Physicians who qualified as experts on mental diseases expressed the opinion that appellant was a paranoiac and that he was insane at the time he killed deceased.

While expressing the opinion that appellant was insane while laboring under the delusion that deceased was trying to break up his (appellant's) home, the sheriff testified, upon cross-examination, that on the 13th of December, 1933, the date of the homicide, appellant appeared to be sane, and he saw nothing in his acts or conduct that indicated that he was insane. One of appellant's employers testified that he talked to appellant on the day of the homicide, and that he appeared to be calm and collected. He testified, further, that appellant always performed his duties well. Another employer testified that appellant had worked for the Humble Pipe Line Company for fourteen years under his supervision, and that he kept his reports in good condition; that on the day of the homicide he talked to appellant in the sheriff's office; that appellant appeared to be calm; that, in view of the fact that he was placing another man in appellant's place, appellant gave him all of the information he asked, and wrote down what was to be done in the field the next day by the new man; that he did not notice anything out of the ordinary at the time. Again, another employer testified that appellant's work had been entirely satisfactory; that he had never seen anything wrong with appellant. The chief gauger, under whom appellant worked, testified that appellant appeared to be troubled and worried at times, and had requested him to help him get a transfer from the field in order to be away from deceased. However, he testified further that appellant's work was normal in every respect.

Appellant insists that by the uncontroverted and overwhelming weight of the evidence he established that he was insane at the time of the fatal shooting, and that hence the verdict of the jury should not be permitted to stand. In support of his contention he cites Kiernan v. State, 84 Tex. Cr. R. 500, 208 S. W. 518, and Gardner v. State, 85 Tex. Cr. R. 103, 210 S. W. 694. In Kiernan's Case it is not shown in the opinion that the accused testified. On the contrary, it was stated that no one testified as an eyewitness to the killing. Several witnesses testified to many acts of the accused extending over a period of years showing that his mind was unsound and leading them to the conclusion that he was insane. Five reputable physicians, including a member of the Southwestern Insane Asylum staff, testified that the accused was insane; some of them testifying that on a former trial that they had testified that the accused was sane, but had changed their minds since. The only other witnesses adduced were as to facts immediately attendant upon the killing. None of these witnesses was questioned as to the accused's mental condition. The state put on no witnesses to prove the sanity of the accused, nor any witness to impeach any of the witnesses offered on the question of insanity. In view of the fact that numerous witnesses, who were apparently credible, agreed that the accused was insane, and that there was absolutely no contradiction of that fact in the record, this court ordered a reversal of the judgment. In Gardner's Case the accused was a man 72 years of age. It was uncontroverted that advancing age had caused his mental decay to such an extent as to induce numerous witnesses to testify that they believed him insane. This testimony was uncontroverted by the state. The trial was for assault with intent to rape a girl under 7 years of age. The assault occurred at noon on the third step from the bottom of an open stairway on the outside of a hotel which was in full view of street cars and persons passing the building. Eyewitnesses located themselves across the alley in plain view and watched the accused with the little girl on his lap for a length of time extending from ten to twenty minutes. The conclusion was reached by this court that the circumstances under which the offense was committed, as detailed by state's witnesses, tended strongly to corroborate the uncontroverted testimony that the accused was insane.

In our opinion the present case is distinguishable from the cases mentioned. That there was testimony controverting the testimony of appellant's witnesses touching insanity is apparent from our statement of the evidence hereinbefore set forth. As pointed out, the sheriff testified that upon the occasion of arresting appellant on the day of the homicide he was of the opinion that appellant was sane. Appellant's employers gave testimony warranting the conclusion that for the fourteen years appellant had worked for the Humble Pipe Line Company he was of sound mind. Other witnesses had not noticed anything in appellant's appearance or conduct that led them to think that he was mentally deranged. Appellant testified as a witness in his own behalf. He made a connected and intelligible statement of the transaction resulting in the homicide. It is well settled that the demeanor and appearance of the accused during the trial may be proven to indicate his sanity or insanity. Branch's Annotated Penal Code, § 30; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. The jury were warranted in considering appellant's demeanor on the witness stand, his ability to remember and relate the circumstances touching the homicide, and his intelligence as a witness, in determining whether he was insane. Manifestly, on the question of insanity there was an issue for the jury. The opinion is expressed that there was sufficient evidence to support the conclusion that appellant was sane when he shot deceased.

Bill of exception No. 1 relates to the refusal of the court to grant appellant's first application for a continuance. Touching the facts appellant expected to prove by...