Murphy v. State, 23437.

• Decision Date: 06 November 1946
• Docket Number: No. 23437.,23437.
• Parties: MURPHY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 98

198 S.W.2d 98

MURPHY v. STATE.

No. 23437.

Court of Criminal Appeals of Texas.

November 6, 1946.

Rehearing Denied December 18, 1946.

Appeal from District Court, Hutchinson County; Jack Allen, Judge.

Beulah Murphy was convicted of unlawful killing with malice, and she appeals.

Affirmed.

Aaron Sturgeon, of Pampa, and J. W. Spivey, Jr., of Borger, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the unlawful killing with malice of Elmo Sullivan, and given a penalty of 12 years in the penitentiary, and she appeals.

We are met in the inception of this case with a plea of former jeopardy wherein it was shown that appellant had previously been placed upon trial on this indictment on June 25, 1945; that a jury was empaneled to try said cause; that she plead not guilty therein and same proceeded to trial; that testimony was heard, arguments presented, and the jury retired to consider of their verdict; that thereafter such jury came into court and indicated their inability to agree and were finally discharged, the appellant being present and not being consulted relative to such discharge.

It was appellant's contention that the jury was kept together so short a time that their discharge without her consent was an abuse of judicial discretion on the part of the trial judge, and upon her being again placed upon trial in such cause, she was twice put in jeopardy therein.

Testimony was heard relative to such first trial and we think the following to be a fair recitation thereof: The first trial hereof was begun on Monday, June 25, 1945; a jury was finally completed on Wednesday morning; the hearing of testimony began and was completed on Thursday thereafter, there being nine witnesses heard; argument started Thursday afternoon and was concluded about 1:00 A.M. of that night, or on Friday morning. The jury then retired, and began their deliberations on Friday about 8:00 o'clock. They deliberated until about 12:00 o'clock, and at such time informed the trial court that they were unable to agree; that they were sent back to further deliberate; that they went to dinner and began again to deliberate at 1:00 o'clock; that at 3:00 o'clock they again came before the court and informed him of their inability to agree, whereupon they indicated that they stood 8 to 4 numerically, not telling how the majority stood. The court then requested that they take a little relaxation and return to their deliberations. At 5:00 o'clock they again appeared before the judge in court and again asserted their inability to agree, whereupon he asked each member of the jury who thought he could finally agree upon a verdict to hold up his hand. None did so. The court then asked the jurors if they thought they could probably gain anything towards reaching a verdict by being longer kept together. If they thought nothing further could be gained by longer deliberations to raise their hand. All did so, and they were thereupon discharged, appellant not being consulted relative thereto and saying nothing.

There is nothing brought forward in the record in the way of an order of the court to show the discharge of this jury by the court so we do not know whether or not such an order appears therein; suffice it to say that the failure to enter such an order would not alone render a plea of former jeopardy tenable. See Rodgers v. State, 93 Tex.Cr.R. 1, 245 S.W. 697.

We are called upon herein to pass upon whether the trial court abused his discretion in discharging this first jury as being unable to agree. The burden of proof in such matter rests upon the accused. See Schindler v. State, 17 Tex.App. 408, 412; O'Connor v. State, 28 Tex.App. 288, 13 S.W. 14.

It is shown by the record that it took about one day to present the testimony in this case; that the jury deliberated about four hours before announcing their inability to agree; that they then ate dinner and again deliberated for about two hours and again announced their inability to agree; that they were sent back, and in about two hours returned into court; that after announcing their continued inability to agree, they were twice interrogated by the trial judge and unanimously stated that they could not agree; that they were of the opinion that it would be useless to continue to deliberate, whereupon they were discharged. We think the careful trial judge did not abuse his discretion in deciding that it would be useless to longer hold such jury, and being convinced that they could not agree, he was correct in discharging them. It follows that appellant's plea of former jeopardy was properly overruled. See Art. 682, C.C.P.

Appellant objected to the trial court's charge in many respects and brings forward in his brief, among other objections, one directed at the paragraph in the charge relative to a provocation of the difficulty by appellant, thus limiting her right of self-defense. In order that this point might be fully understood, it becomes necessary to briefly set forth some of the facts shown.

Appellant claimed to be engaged to marry the deceased, Elmo Sullivan, who lived by himself in a trailer camp located down an alley in the City of Borger. On the night of the killing, appellant left her home about 10:30 o'clock at night, visited a tavern or two, and "window shopped" around town until about 12:00 o'clock midnight, at which time she decided to go to the deceased's home and obtain a suitcase and an alarm clock belonging to her. Deceased was not at home and she entered his home and obtained the suitcase. She also found and read some letters to him. She then started to leave and saw him and others coming to his home. She asked deceased who was the woman with him in the car. The presence of the woman was denied, but some words passed relative thereto. Finally she decided to go home and the deceased offered to take her in his car. She attempted to enter the car on the right side and found the door locked. Her request to open the door was denied, deceased telling her to "ride the bumper," and she said, "I will," and got on the bumper. They then drove out of town a short distance, she holding on to the windshield wiper. The car was finally stopped and she again asked to be let into the car. The deceased finally opened the door and she got in. They again had some words, and in her testimony on the trial she complained for the first time that the deceased forced her to have unnatural sexual relations with him. During this performance she was struck and chocked by the deceased, her head "whammed" against the car door and her arms twisted. They had some words, expressing their hate for each other, and he threatened to kill her if she disclosed his treatment of her. Eventually they returned to deceased's home. She demanded an apology from him, which he refused to make, and told her that if she ever came back to his house he would kill her. She left and went to her home, some seven blocks away, and endeavored to obtain a shotgun, but found same had been loaned to a neighbor, and the neighbor did not then have such gun. She then went to the home of a brother-in-law, and at about 5:00 o'clock in the morning she there obtained a .22 caliber rifle and some cartridges, went back to deceased's home, opened the door and said, "Well, here I am again," whereupon the deceased, who was in bed, raised up on his elbow and said, "You s____ of a b____; I will kill you," whereupon she shot him, reloaded her gun and shot him again, she being about six feet away from him at the time. Not remembering how many times she shot, she thought she was in danger of her life when she shot in her own self-defense. She went back to his house the last time, not only to obtain an apology, but also to retrieve her purse with about $200 in it and some of her belongings.

This story, told upon the stand, differed in some material points from a signed statement made before the County Attorney on the day of the homicide; but be that as it may, we think the trial court was correct in embodying in his charge a paragraph on provoking the difficulty. Her acts in appearing the last time at deceased's home after the trouble with him, as detailed by her, and after she had been told to leave the place and not return, and her statement to him, not only provoked but invited the attack from this man who was lying in bed and probably asleep at 5:00 o'clock in the morning. In an exhaustive and proper charge, we think the trial court was correct in thus charging on a provocation of the difficulty. As sustaining appellant's position herein, we are quoted to at length from her testimony recited from the witness stand, which is the basis of her plea of self-defense. There was a signed statement made by appellant on the day the deceased was killed which was in some material aspects contradictory to portions of her testimony on the stand and was not very helpful to her in certain crucial points in her testimony.

Appellant's third point of error complained of herein is shown by her Bill of Exceptions No. 16, that after Florence Connally had testified as to appellant's good reputation for being peaceable and law-abiding, "upon cross-examination by the State, but over the objection of the defendant, the...