Northern v. State

• Decision Date: 10 November 1948
• Docket Number: No. 24157.,24157.
• Citation: 216 S.W.2d 192
• Parties: NORTHERN v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W.2d 192

NORTHERN v. STATE.

No. 24157.

Court of Criminal Appeals of Texas.

November 10, 1948.

Rehearing Denied January 5, 1949.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Buster Northern was convicted for murder with malice, and he appeals.

Affirmed.

George Q. Youngblood and B. D. Paschall, both of Dallas, for appellant.

Will R. Wilson, Jr., Cr. Dist. Atty., George P. Blackburn, and Frank C. Moore, Jr., Asst. Cr. Dist. Attys., and Douglas E. Bergman, all of Dallas, and Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the murder with malice of Mrs. Fannie McHenry and by the jury given the penalty of death.

The gruesome facts herein proven are practically the same as those in the pervious appeal of this cause reported in Northern v. State, Tex.Cr.App., 203 S.W.2d 206, and will not be repeated here.

It is claimed that there is a fatal variance between the allegation and the proof relative to the manner of causing the death of Mrs. McHenry. The allegation complained of reads in part as follows:

"* * * that one Buster Northern on or about the 27th day of March in the year of our Lord One Thousand Nine Hundred and 46 in the County and State aforesaid, did then and there unlawfully, voluntarily and with his malice aforethought, kill Fannie McHenry by then and there kicking the said Fannie McHenry with his, the said Buster Northern's feet; contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State."

The portion of appellant's written statement relied upon as failing to correspond to the above allegation reads as follows:

"I told the woman to get out of the cars, that I wanted the papers, and she said why? I told her me and my brother were going to travel together and that we didn't have any use for her. She said that she had paid for the car, with her money. She said `you ain't gonna get it,' I said `yeh I am.' She got out with an old wrench or something in the back back of the car. She hit at me and I ducked. Then I kicked her legs out from under her. Then I kicked her in the mouth with my shoe heel. I think I kicked her three times around the face and head. I left her lying at the side of the road. I got back in the car and turned around, coming on back to town. I drove on over to the Sportatorium to the wrestling match, where I looked in the woman's purse, that had $11.65 in money in it. I took that out. As I was going across the viaduct, I threw a 32 Owlhead pistol into the river which belonged to the woman."

The assault described shows that appellant first "kicked her legs out from under her. Then I kicked her in the mouth with my shoe heel. I think I kicked her three times around the face and head. I left her lying at the side of the road."

The proof does show that the unfortunate lady was kicked in the mouth, and such was evidenced by the loss of several teeth. It also shows that her head and face were bruised, torn, mangled and broken into a well-nigh unrecognizable mass of bruises and lacerations; that her jaws were broken, her head crushed, her nose mashed flat, her ear well-nigh severed, and spinal fluid emanating therefrom.

Dr. Walter W. McCook testified, among other things, that the lady's "death was the result of the injuries which were inflicted on her and which she had at the time that I saw her in Parkland Hospital. My opinion would be that her injuries were caused by a number of blows because of the multiplicity of lacerations and bruises."

We would not think that the State should be restricted to the proposition of saying that the kick in the mouth was the sole cause of death. We express the opinion that the proof herein corresponds to the allegations in the indictment and sufficiently shows the manner of death.

In Bill of Exception No. 1, appellant complains because of the introduction in evidence of a certain birth certificate emanating from the State of Louisiana, issued by a certain Health Unit Division of Vital Statistics in Shreveport, Louisiana, authenticated by a registrar under a seal and certified to by the proper authorities, showing the birth of the tenth child, a white male, to Mr. and Mrs. E. D. Northern at Charity Hospital, Shreveport, Louisiana, the date of the birth being June 13, 1928. The introduction of such certificate was objected to because the same did not identify appellant, that it was hearsay, and was an unintelligible ex parte statement, and also because there had been no testimony in this trial that Buster Northern was born in Louisiana. It is shown by the qualification of this bill that the State introduced in evidence the laws of Louisiana relative to birth certificates and their admissibility in the courts, together with a certificate from the Secretary of State of Louisiana relative to such statute, as well as a certificate of the Registrar of Vital Statistics that such was a true copy thereof, also a certificate by the District Clerk that such person was the Registrar, and one by the District Judge relative to the District Clerk, and by the Clerk relative to the District Judge. We also find an admission upon the part of appellant's attorneys that such certificate was admissible under the laws of Louisiana.

It is shown by appellant's own testimony that his mother's name was Pearlie; that she was known as Mrs. E. D. Northern; that he was the tenth child born to her; that she told him that he was born in the Charity Hospital in Louisiana; that she was part Indian, and that his father was born in Ireland. All these matters are found in the birth certificate, and the appellant's testimony corroborated such certificate save the date of his birth, his claim being that his birth occurred one year later, namely, June 13, 1929.

Appellant was charged with having committed this offense on March 27, 1946, making his age on such last-named date, 17 years, 8 months and 14 days, according to his evidence given on the trial; and his statement taken at the time of the commission of the offense showed his age then to be 17 years old. We think this testimony conclusively shows him to have been born in the year 1928.

We think the certificate of birth was admissible under 28 U.S.C.A. § 688 [now § 1739], under the full faith and credit clause. We are cited to the cases of Witt v. State, 5 Ala.App. 137, 59 So. 715; and State v. Johnson, 194 Wash. 438, 78 P.2d 561.

Texas Law of Evidence (McCormick and Ray) p. 723, sec. 567, says:

"On a charge of assault to rape under age, a register of the birth and baptism of the girl in a church in another state was received."

The opinion in a case cited thereunder is found in Ford v. State, 82 Tex.Cr.R. 639, 200 S.W. 841, and therein Judge Davidson cites a line of cases holding such certificate admissible under proper proof of its authenticity.

We find no error shown in such bill.

Bill No. 3 complains because of the introduction of certain articles found in the automobile shown to have been registered in Mrs. McHenry's name, because the same were claimed to have been taken from appellant while he was under arrest, and no search warrant was issued therefor, and same was not the alleged instrumentality of death, nor did their finding result in the arrest of appellant or the discovery of the crime. However, the court's qualification of the bill states that no such objection was made at the time of the introduction of the evidence. Regardless of that, we are of the opinion that the arrest of appellant was legal. It is shown that the arresting officer had received information that appellant was driving around in a stolen automobile bearing an Oklahoma License. The officer (a city policeman) began a search for him and soon found the car, and also located the appellant and took him into custody. The car was not that of appellant but belonged to Mrs. McHenry. Therefore, appellant had no right to complain of the search. Murry v. State, 148 Tex.Cr.R. 21, 184 S.W.2d 476; Lee v. State, 148 Tex.Cr. R. 220, 185 S.W.2d 978. Furthermore, under the statute Art. 215, C.C.P., the officer was justified in arresting the appellant. Again, under an ordinance of the City of Dallas, evidently passed under the authority of Art. 214, C.C.P., the policeman was justified in making this arrest. Moreover, the car was evidently stolen property, and under Art. 325, C.C.P., it was the duty of the police officer to take this personal property into his possession and bring the same, together with the supposed offender, before a magistrate for examination. The arrest was legal. Therefore, the taking into possession of the car and its contents were also legal and properly introduced herein. The contents of the car were introducible in evidence also as a matter of identification of the unfortunate lady who owned such contents, especially so in the presence of the testimony showing the condition of her face and head and the difficulty of identification. Again, if the officer was correct in taking the car into his possession, then he had the same right to take that which was found within the car.

Bill No. 4 relates to an objection to the introduction in evidence of a shoe and sock taken from the body of appell...