Musselman v. State

• Decision Date: 18 March 1925
• Docket Number: (No. 8827.)
• Citation: 274 S.W. 628
• Parties: MUSSELMAN v. STATE.
• Court: Texas Court of Criminal Appeals

274 S.W. 628

MUSSELMAN v. STATE.

(No. 8827.)

Court of Criminal Appeals of Texas.

March 18, 1925.

Rehearing Denied June 26, 1925.

Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.

Pearl Musselman was convicted of murder, and she appeals. Affirmed.

Dallas Ivey and H. B. Short, both of Center, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 15 years.

The companion case of Jim Ballew v. State is reported in 97 Tex. Cr. R. 325, 260 S. W. 1046. The evidence in the present trial is not different from that which led to the conviction of Ballew, save that in that trial the appellant in the present case testified as a witness for the state, entailing the necessity for corroborative evidence. In the present case, her testimony upon the trial of Ballew, as well as upon the habeas corpus trial in which he sought bail, was reproduced. She introduced in evidence part of her testimony on the former hearings, and the state then introduced the remainder. The record in the present case shows no objection to this proceeding.

The testimony given by the appellant upon the former trial does not bear the characteristics of a confession. The state was at liberty to produce it upon the present trial as original evidence. See Collins v. State, 39 Tex. Cr. R. 447, 46 S. W. 933; Kirkpatrick v. State, 57 Tex. Cr. R. 17, 121 S. W. 511; Branch's Ann. Tex. P. C. § 80. Any exculpatory evidence embraced in the reproduced testimony was available to the accused, and, if such matter presented a defensive theory, it would be incumbent upon the court to submit it to the jury, but the procedure disclosed did not, in our judgment, call for an application of the principle announced in Pharr's Case, 7 Tex. App. 473, in which it was declared, in substance, that, where the state relied upon the confession of the accused to show that the accused had committed the offense, and in the confession there was an exculpatory statement, it was incumbent upon the court to instruct the jury that this exculpatory statement, having been introduced by the state, was to be considered as true unless disproved.

From what has been said, it follows that in the opinion of this court the refusal of appellant's requested charge No. 8, to the effect that the state, having used the appellant as a witness upon the trial of Ballew, and reproduced her testimony upon the present trial, was bound by her statements, and that, unless from all the evidence they should believe beyond a reasonable doubt that appellant was a principal in the killing of the deceased, as the term "principal" was defined in the charge, an acquittal should result. As indicated above, we think the court was not required to instruct the jury that the state was bound by the exculpatory statements in the appellant's testimony. Casey v. State, 54 Tex. Cr. R. 587, 113 S. W. 534. The rule requiring such a charge as stated is not of universal application. See Pickens v. State, 86 Tex. Cr. R. 660, 218 S. W. 755, and numerous cases cited therein. So far as the writer is aware, this rule is confined to cases in which the state takes the initiative and introduces a confession or admission of the accused made out of court. Such was the case in Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Forrester v. State, 93 Tex. Cr. R. 415, 248 S. W. 40, 26 A. L. R. 537, and numerous other cases to which reference is there made.

The procedure adopted in the case now under consideration is novel, in that, without objection, the state permitted the accused to introduce as original testimony the stenographer's report of the appellant's testimony given upon the trial of Ballew, and the state then, without objection, reproduced the testimony given by her upon the same trial. She is not in a position to claim that the exculpatory declarations contained in the part of her former testimony which she introduced were put in evidence by the state and thereby avail herself of the rule for which she contends and which is asserted in Pharr's Case, supra, and others. Neither can she, in our judgment, avail herself of that rule with reference to the exculpatory declarations contained in the part of her testimony embraced in her cross-examination upon the former trial, which was introduced in evidence in this trial for the reason, as stated above, that the cross-examination was explanatory of the testimony introduced by her, and a part of the same transaction comes, as we conceive it, properly within the terms of article 811, C. C. P., declaring that, when part of a declaration is introduced by one party, the remainder may be introduced by the other party.

There was no exception to the court's charge for the failure to take note of the exculpatory declaration. However, cognizance was taken of it as is manifested by the eighth and ninth paragraphs of the court's charge, which read thus:

"(8) Our statutes provide that a person forced by threats or actual violence to do any act is not liable to punishment for the same. Such threats, however, must be: (1) Loss of life or personal injury; (2) they must be such as are calculated to intimidate a person of ordinary firmness.

"(9) Now, if you believe from the evidence that the defendant, Pearl Musselman, by reason of threats previously made by Jim Ballew, if any were made, was in fear of the loss of her life, or personal injury, or that said threats, if any, were calculated to intimidate the defendant, and that said threats of violence, if any, were such as to restrain the defendant from escaping, or such as to render her incapable of resistance, she would be under duress and not liable to punishment, and, if you so find, you will acquit her."

In the brief, it is suggested that paragraph 9 of the charge is faulty in the use of the words "if you believe from the evidence that the defendant was in fear of the loss of life," etc. This being a submission of the defensive theory, it would not have been proper that the court instruct the jury that they must believe the testimony upon which she relied beyond a reasonable doubt. To have so instructed would have turned the reasonable doubt against her and not in her favor. Moreover, the complaint was not pointed out by an exception at the time of the trial. Even if the instruction given were incomplete, the court having charged the jury on the exculpatory theory arising from the appellant's reproduced testimony was not bound to amend its charge upon that subject, in the absence of a specific objection embraced either in a written exception to the charge or a special charge so framed as to pertinently make known to the trial court the complaint relied upon. See Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Parker v. State (Tex. Cr. App.) 261 S. W. 784; C. C. P. arts. 735, 737, 737a, and 743.

Another special charge requested was, in substance, that if, by reason of threats calculated to intimidate a person of ordinary firmness, and which did intimidate the appellant and contributed to influence her in becoming an actor in the homicide there should be an acquittal. In another special charge there was a request to instruct the jury that, in passing upon the question of duress, all the facts and circumstances introduced in evidence should be taken into consideration. Neither of these charges is tenable for the reason that, as stated above, they related to a subject which was submitted to the jury, namely, that of duress, against which there was no exception to the charge directed. The special charge did not, in our judgment, point out any such defect in the main charge as would warrant us in reversing the judgment. See Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906.

Passing all technical obstacles to the full consideration of the criticisms of the charge of the court and its refusal of the requested charges, we are constrained to regard them as devoid of any matter which would justify a reversal of the judgment, when viewed in the light of article 743, C. C. P., wherein it is declared that a nonobservance of the statutory directions touching the substance of the court's charge to the jury shall not work a reversal, unless calculated to injure the rights of the accused, or unless it appears that a fair and impartial trial has not been accorded the accused.

The state's theory, coming from several witnesses, was that the appellant had conspired with Ballew to cause an insurance policy to be issued upon the life of the deceased, and that one of the motives which inspired the homicide was the desire to realize upon this insurance policy. Walker, an insurance agent, testified that the appellant came to his office and discussed the matter of insurance upon the life of the deceased, and that, upon her admission, this occurred before their marriage. This appellant denied. In her testimony she gave evidence that she and Ballew had discussed the insurance several times. According to her evidence, she had received the insurance policy and had afterwards directed Mr. Walker to take the policy and put it in the bank. Two or three days before the homicide, Walker brought the insurance policy to the appellant and collected $50 which the deceased had left with her for the purpose of paying the premium. Ballew knew of the arrival of the policy before the appellant did; he having learned it from Walker. Ballew told her that the policy had a flaw in it, and asked that he be given possession of it. This she declined to do however. She had also declined to give Ballew the address of her husband, for fear, she said, that Ballew would kill him. Ballew finally secured the address by intercepting letters and learned that the deceased was at Richmond, Tex. She said that Ballew induced her to write a Ku Klux letter to her husband, telling him to return to Houston; that,...