Osborn v. State, 26612

• Decision Date: 25 November 1953
• Docket Number: No. 26612,26612
• Parties: OSBORN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 263

263 S.W.2d 263

159 Tex.Crim. 323

OSBORN v. STATE.

No. 26612.

Court of Criminal Appeals of Texas.

Nov. 25, 1953.

Ash & Abbott, by Theo. Ash, Abilene, for appellant.

Wesley Dice, State's Atty., Austin, for the State.

GRAVES, Presiding Judge.

Appellant was convicted in the District Court of Taylor County of the offense of murder with malice and his punishment assessed at confinement in the state penitentiary for a term of 15 years.

The facts in this case are somewhat conflicting. However, as viewed from the State's testimony, we find the following:

Curtis Couch, the deceased, was a blind man. On January 17, 1953, he was present in the home of the appellant where appellant seemed to have been living by himself. There was considerable drinking during the day, and the appellant's testimony is somewhat confusing as to just what actually occurred therein. This much is proven: That appellant himself called the Police Department of Abilene and stated: 'Curtis Couch was choking my girl. I made him quit. He made a run at me and I shot him.' He requested the officers to come to his house immediately. Two members of the Police Department went at once to the appellant's house. In an attempt to enter the door, they found the body of a person lying inside of the room against the door. They were directed to go around and enter by another door. They went in and found present a woman by the name of Carrie Bynum. The deceased had been shot in the chest with a .22 caliber rifle. The bullet penetrated his heart and he died immediately thereafter. Appellant also told the officers that he had called his father and told him that he had just shot a man and that he used only one shell. He also told the officers that the gun was in the bedroom and insisted that they take the same.

Appellant and his girl companion were taken to the police headquarters, and after interrogation, appellant signed a voluntary confession wherein he stated that the deceased was at his house and had hit him with a wine bottle; that he started to choke Carrie Bynum; that appellant went and got his gun; that the shot which was fired hit the deceased who fell at the foot of the bed where Carrie Bynum was.

After the case had proceeded for quite some length of time the State introduced in evidence a further portion of the appellant's confession wherein he stated that the deceased and Roy Raines had a tussle over the gun and the shot was fired; that thereafter Roy Raines left by the back door. The State's evidence consisted mainly of the appellant's confession and other statements made by him to the officers and to his father in the presence of the officers that he (appellant) had shot the deceased. There were also introduced numerous witnesses for the State and the defendant, most of whom attacked the appellant's reputation as a peaceable, law-abiding citizen, and some attacked the reputation of the deceased as being a violent and dangerous character.

The testimony of the appellant shows that he was at home since noon on the day of the homicide; that he was drinking wine and whisky; that he and the deceased had a fight of some kind during which the deceased struck him with a wine bottle and was choking the girl; that appellant went to the bathroom to wash the blood from his face; that Roy Raines, an ex-convict, was present and appellant asked him (Raines) to stop the deceased from abusing the girl; that Raines came to the bedroom and got a gun; and appellant grabbed the gun and two shots were accidentally fired therefrom.

The witness Roy Raines testified that he was present in the home of the appellant; that a quarrel ensued between the deceased and the girl; that he left and was not present when any of the shots were fired and did not hear them; that he was not there when the deceased was killed.

From the State's standpoint, however, it was shown that the appellant and this girl were at his home all day of the homicide and were drinking wine and whisky; that a quarrel ensued between the deceased and the girl during which the appellant shot the deceased in the chest from which wound he soon died.

There is no testimony in the record relative to the theory of self-defense, either from the appellant or the girl, nor that appellant believed at the time he shot that his own or the girl's life was in danger, nor that the girl was in danger of suffering any serious bodily injury at the hands of the deceased. Outside of the confession of the appellant, there is testimony that appellant stated that he was the one who shot the deceased.

There are four formal bills of exception which we will attempt to discuss. The first two bills (Nos. 1 and 2) question the sufficiency of the evidence to support a verdict of guilty of murder with malice. Appellant filed a motion for an instructed verdict on the ground of the insufficiency of the evidence particularly on the alleged ground that the evidence relied upon by the State to establish the fact that appellant shot and killed the deceased was evidence of an exculpatory nature and that the State was thereby bound by such exculpatory statement.

Bill No. 2 reflects that at the conclusion of the testimony appellant filed a motion for an instructed verdict on the alleged ground that the State had wholly failed to establish by legal and competent evidence that appe...