Parker v. State

• Decision Date: 11 January 1899
• Citation: 49 S.W. 80
• Court: Texas Court of Criminal Appeals
• Parties: PARKER v. STATE.

Page 80

49 S.W. 80

PARKER v. STATE.

Court of Criminal Appeals of Texas.

January 11, 1899.

Appeal from district court, Bell county; John M. Furman, Judge.

Will Parker was convicted of murder in the first degree, and he appeals. Affirmed.

A. L. Curtis and James E. Ferguson, for appellant. James P. Kinnard and Mann Trice, for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

There are no bills of exception contained in this record to the admission or rejection of testimony, except such as are in the statement of facts. The statement of facts having been filed after the adjournment of court, we cannot consider any of said bills of exception.

In the motion for a new trial, appellant excepted to the refusal of the court to give certain requested charges, and to the failure of the court to charge on certain aspects of the case in his general charge. Among other things complained of is the failure of the court to give a proper charge on the question of alibi. We do not think there is any error in the court's failure to charge on the question of alibi, because, in our opinion, there was no evidence requiring such a charge. The homicide was committed about one mile from Heidenheimer, in Bell county, on the 29th of April. Evidently the killing occurred in the early part of the night. The deceased lived alone, and his dead body was not discovered until some time the next evening. The state's testimony tended strongly to show that appellant was seen, about dark, going in the direction of the house of the deceased, with a gun. When last seen, he was not more than 500 or 600 yards therefrom. The evidence of the defendant, in our view, does not remotely suggest an alibi. His wife testified that he left his home in Heidenheimer about dark, saying that he was going to Temple, which was some six miles distant from Heidenheimer. He was not seen at Temple until about 12 o'clock that night. This testimony not only fails to exclude the idea of his presence at the place of the homicide, but, as stated above, was not sufficient to require the court to give an instruction on alibi. His leaving home about dark, and his appearance at Temple about 12 o'clock on that night, is entirely consistent with the state's theory that he was present at the scene of the homicide, and did the shooting.

There is nothing in appellant's contention that the court erred in giving the charge on circumstantial evidence, nor in refusing to give the requested charge. The charge given is in accordance with the approved form on that subject.

Appellant complains of the action of the court in refusing to give an instruction to the jury on the subject of the confession of appellant while in jail, as testified to by the witness Carley. Said requested charge was substantially to the effect that the jury would not regard said confession unless, in pursuance thereof, some fact was ascertained to be true, as confessed by appellant, showing his connection with the crime, such as the finding of the instrument with which he stated the offense was committed. We would observe, in this connection, that the court gave a charge on this subject embodying the principles suggested in appellant's charge. We think the court's charge adequately presented the propositions of law on the subject. However, so far as the record before us is concerned, no bill of exceptions was reserved to the admission of the testimony of Carley as to the confession made by appellant to him; and, under the circumstances, if the court had not charged on the subject at all, there would have been no error. We would further observe, in this connection, that if we recur to the statement of facts embodying this testimony, and bills of exception embraced in said statement of facts, it appears that appellant was not warned at the time the alleged confession was made, and Carley's testimony was not admitted on that ground, but was admitted by the court on the ground that appellant in connection with his confession, made a statement of facts or circumstances, subsequently found true, which conduced to establish his guilt; and, in this regard, the testimony further discloses that deceased was shot with slugs. This fact was not known anterior to appellant's confession; and, in pursuance of that confession, the body was exhumed, and it was then ascertained that it was true, as had been stated by appellant, that shot, or at least some of the shot, which entered the body of the deceased, were slugs. True, some of the shot had been taken from the body previously by a physician; but it was not known or discovered by him, or any one else, that said shot were slugs, prior to the confession of appellant. So it occurs to us, even if the question had been properly saved as to the admission of this...