Nichols v. State

• Decision Date: 20 June 1928
• Docket Number: (No. 11871.)
• Parties: NICHOLS v. STATE.
• Court: Texas Court of Criminal Appeals

10 S.W.2d 109

NICHOLS v. STATE.

(No. 11871.)

Court of Criminal Appeals of Texas.

June 20, 1928.

Rehearing Denied October 31, 1928.

Commissioners' Decision.

Appeal from District Court, Limestone County; W. T. Jackson, Judge.

Tom Nichols was convicted of murder, and he appeals. Affirmed.

H. F. Kirby and Kennedy & Engledow, all of Groesbeck, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, murder; penalty, 12 years in the penitentiary.

Philip Ross was a negro; appellant, a white man. The deceased left his home one afternoon, having in his possession some money and notes. Upon his failure to return, a reward was offered of $150 for him alive or $100 for his dead body. Shortly after this reward was offered, his body was found by appellant and another in a pasture in a badly decomposed condition. Appellant received part of the reward offered. Appellant was arrested and signed a confession, the substance of which was that a short time before the tragedy he came upon the deceased and his alleged paramour, Reca Mae Adams, in an automobile, which appeared to infuriate deceased, and both deceased and the woman cursed and abused appellant. On the night of the tragedy he again came upon deceased, this time alone, who was fixing a flat tire, and deceased referred to the former occurrence and menacingly reached towards his automobile car pocket, apparently for a pistol, whereupon appellant shot him with a shotgun. He then took his body to a pasture and hid it, and near the body left the empty shells from his shotgun. He took deceased's car up the public road and set same afire. Both the shells and the car were subsequently found. Reca Mae Adams denied the occurrence detailed by appellant, and testified further that appellant left her house the night of the tragedy alone.

The state's theory of motive for the killing was robbery. The appellant did not testify on the trial.

Proper exception was taken to the following argument of the state's attorney, it being urged that same was a reference to appellant's failure to testify:

"We must decide how this crime was committed and what occurred there from the circumstances. The state could offer no direct testimony as to this fact. There is no witness to this killing who is available to the state. Philip Ross is dead, lying in a grave out west of Mexia."

This statement we think could not have been understood by the jury as a reference by counsel to the failure of appellant to testify, but rather as an explanation of the character of testimony which the state relied upon for conviction. It was neither directly nor indirectly a reference to the appellant's failure to put in evidence facts provable only by defendant, but instead was a reference to the actual record as made with an explanation of why the murder had to be thus proven. If a reference to the appellant's failure to testify can be deduced from this statement, it would be by a process of reasoning too circuitous and remote to have any harmful effect on the average juror, in our opinion. Authorities on this question will be found collated in Branch's Penal Code, § 374, and Vernon's C. C. P. 1925, vol. 2, p. 743. None of these, in our opinion, support the appellant's contention.

The state relied principally upon the confession of appellant, which confession contained exculpatory statements raising the issue of self-defense. The court not only charged on self-defense fully, but also gave a pertinent and apt charge to the effect, in substance, that the state was bound by the statements in appellant's confession, unless the exculpatory statements were shown by the evidence to be untrue, specifically instructing to acquit unless the jury believed from the evidence beyond a reasonable doubt that the exculpatory statements made by appellant in the purported confession were untrue. In this respect the court gave appellant everything he was entitled to under the cases of Pharr v. State, 7 Tex. App. 478, and those collated and shown at section 73, Branch's P. C.

Vigorous complaint is made that state's counsel in argument made statements which in effect amounted to a denial that the instructions given by the court with respect to the matter immediately above discussed was the law and that by their argument they attempted to induce the jury to disregard the law as given them by the court in his charge. These matters are presented by several bills of exception, all of a kindred nature, and two of these will be set out as illustrative of the point.

"State's counsel's statement, in his argument to the jury, which was as follows: `You don't have to accept all of this confession as true. You can believe the reasonable part of it and discard that part that is not reasonable,' was of so prejudicial a nature as to require a reversal of this case."

"State's counsel's statement, in his argument to the jury, which was as follows: `The State is not bound to prove the falsity of the exculpatory statements in the defendant's confession. See whether or not the exculpatory statements in the confession are reasonable. If these statements are unreasonable you don't have to believe them, even if the state hasn't disproved them,' was of so prejudicial a nature as to require a reversal of this case."

While the state is bound by the whole confession, this certainly could not mean an inhibition against the state's counsel analyzing the entire statement to determine whether the exculpatory portion is reasonable in the light of other facts contained in such statement. In other words, while bound by the exculpatory statement, unless proven false, the state may properly point to other portions of the admitted confession which tend to prove the falsity of the defensive matter set out in such confession. Being bound by the statement does not mean being restricted to the appellant's interpretation of same. The exculpatory portions of the statement, may, we think, be disproved as well by other portions of the same statement as by independent testimony. The statement as a whole may furnish sufficient proof of the falsity of the exculpatory matters contained therein, and in such case it is entirely proper to argue: "You don't have to accept all of this confession as true. You can believe the reasonable part of it and discard that part that is not reasonable." Some of the arguments complained of might under other facts constitute reversible error. Counsel cannot misstate the law in such way as would amount to a nullification of the court's instructions to the jury. Rodriquez v. State, 100...