Morgan v. State

• Decision Date: 13 April 1938
• Docket Number: No. 19467.,19467.
• Citation: 117 S.W.2d 76
• Parties: MORGAN v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W.2d 76

MORGAN v. STATE.

No. 19467.

Court of Criminal Appeals of Texas.

April 13, 1938.

Rehearing Denied June 8, 1938.

Commissioners' Decision.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Collan H. Morgan was convicted of murder, and he appeals.

Affirmed.

Stanley W. Caufield and George Rodriguez, both of El Paso, for appellant.

Roy D. Jackson, Dist. Atty., and William E. Clayton, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Eleanor Morgan by "choking her and strangling her and beating her in the head with a bottle and tying an insulated wire around her neck and thereby choking her."

Two or three years prior to the homicide Frank Rose, his wife (the deceased) and their small daughter, Gloria, moved into the same apartment house in which appellant lived with his wife and son. A clandestine affair developed between appellant and deceased. Finally the wife of appellant took her son and moved to New Mexico, where she died a few months later. Appellant and deceased continued their affair until the early part of 1937, when Rose demanded that deceased should determine whether or not she would live with him or go with the appellant. The result was that Rose and deceased separated. On the 5th of March, 1937, appellant and deceased married. Thereafter they drank heavily, had frequent quarrels, and were jealous of each other. In May, 1937, they separated and appellant went to live with a sister of his first wife. After appellant discussed with his attorney the question of securing a divorce from deceased, a reconciliation was effected and she agreed to live with him, on the condition that she would return to her people if they were unable to get along.

During the month of May, 1937, appellant's son came to live with him and the deceased. Thereafter appellant and the deceased began to quarrel. She told her landlady that appellant had abused her, and intimated that she was going to leave him. On the 20th of June, 1937, appellant found a letter deceased had written, in which there was an intimation that she intended to leave the appellant. On the night of the date last mentioned appellant's son was away from home, and appellant and deceased were sitting on the floor playing cards. Without warning, appellant grabbed the deceased by the throat and choked her until she was unconscious. He then struck her on the head with a Coca-Cola bottle and wrapped a lamp cord around her neck. After washing his hands and changing his bloody clothing he left the room, locking the door behind him. Within an hour appellant's son returned to the house. Finding the apartment locked, he called the landlady to open the door. The body of deceased was discovered in the apartment and officers were immediately called to the scene of the homicide. When appellant returned to the apartment, seeking his son, he was arrested. He made a complete confession to the officers. Upon the trial he admitted that he had killed the deceased.

The case was set for trial for July 19, 1937. On July 13th attorneys for the appellant filed an affidavit to the effect that appellant was insane at the time of the commission of the homicide, and that he was insane at the time of the filing of the affidavit, and prayed that these issues be tried before he should be tried upon the indictment for murder. On July 19th a jury was impaneled and a trial had upon the sanity issues raised by the affidavit. The jury found that the appellant was sane at the time of the commission of the homicide and was then sane. Appellant filed a motion for new trial and when same was overruled he gave notice of appeal to this court. Two days thereafter he was brought to trial upon the indictment herein. He again interposed the defense of insanity at the time of the commission of the offense, and sought to inject into the case the issue of present insanity. The court declined to consider the latter issue but received testimony pro and con on the question of appellant's sanity at the time of the commission of the offense. This issue was submitted to the jury. The preliminary trial to which we have referred was held under the provisions of House Bill No. 993, Acts of the Regular Session of the 45th Legislature, Vernon's Ann.C. C.P. art. 932a.

When the case was called for trial appellant filed an application for continuance upon the ground that he had a right to appeal from the judgment of the court upon the sanity hearing before he could be tried upon the charge of murder. The court was warranted in overruling the application, as there could be no appeal from the sanity judgment. Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805; Griffin v. State, Tex.Cr.App., 29 S.W.2d 349.

Bills of exception 1 and 2 relate to the refusal of the court to permit the appellant to inject into the case the issue of present insanity. It has been observed that this issue was tried before a jury at the request of the appellant and that he was found to be sane at the time of the commission of the homicide and sane at the time of the trial. Two days later the case went to trial upon the indictment herein. Appellant was permitted to again submit his defense that he was insane at the time of the commission of the homicide. There was no suggestion at the time of the trial that there was any change in the mental condition of the...