Parker v. State

• Decision Date: 07 December 1921
• Docket Number: (No. 6447.)
• Citation: 238 S.W. 943
• Parties: PARKER v. STATE.
• Court: Texas Court of Criminal Appeals

238 S.W. 943

PARKER v. STATE.

(No. 6447.)

Court of Criminal Appeals of Texas.

December 7, 1921.

Rehearing Denied January 18, 1922.

Second Rehearing Denied March 29, 1922.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

Carl Parker was convicted of murder, and he appeals. Affirmed.

Geo. E. Gordon, Stevens & Stevens, and Mathis, Teague & Mathis, all of Houston, for appellant.

E. T. Branch, Dist. Atty., of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant is condemned to suffer death for the offense of murder.

That appellant was an actor in the homicide was proved.

Insanity resulting from the combined effect of intoxicants and drugs was interposed as a defense. The facts upon which the insanity was predicated and the existence of the mental derangement were controverted, and the conclusion of the jury against the appellant upon that issue is supported by the evidence.

Appellant applied for a change of venue upon the ground of prejudice against him which precluded a fair and impartial trial. The means of knowledge of the supporting affiants was controverted. We fail to find the bill of exceptions reserved to the action of the trial judge in overruling it. This is made necessary by statute. Code of Crim. Proc., art. 634; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Harbolt v. State, 39 Tex. Cr. R. 129, 44 S. W. 1110; Vernon's Texas Crim. Statutes, vol. 2, p. 342 and cases cited.

We find in the record a document which appears to have been designed to preserve the evidence heard upon the application for a change of venue. This document does not purport to be a bill of exceptions, nor is it agreed to as a statement of facts. It is a reproduction in question and answer form of the testimony of various witnesses. We do not regard it as being in a condition to authorize a review of the action of the court for the reason, as stated above, that there is no bill of exceptions upon the subject of change of venue. Even if, in the absence of a bill of exceptions to overruling the motion, the facts adduced could be considered, the document mentioned cannot be treated as a statement of facts pertaining to the motion for the reason that it does not purport to be one, and for the further reason that it is not prepared in the manner required by the statute. This court has uniformly declared that the stenographer's notes reported in question and answer form do not comply with the statute concerning a statement of facts. The statute requires that there be made up from the question and answer record or from other data "a statement of facts in succinct manner without unnecessary repetitions." A reproduction of the questions and answers as given by the witnesses is obviously a noncompliance with this statutory requirement and has frequently been so declared. Ferguson v. State, 83 Tex. Cr. R. 273, 202 S. W. 733, and cases therein cited; Mooney v. State, 73 Tex. Cr. R. 122, 164 S. W. 828; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370. A question and answer record does not comply with the statute prescribing the requisites of a bill of exceptions, which declares that "no form shall be required, but that the objection to the ruling shall be stated with such circumstances, or so much of the evidence, as may be necessary to explain it, and no more, and the whole as briefly as possible." Revised Statutes, art. 2059; Plummer v. State, 86 Tex. Cr. R. 493, 218 S. W. 499. We have examined the document mentioned, and, even if the matter was presented so that we might consider it, it would not authorize a reversal because of the refusal to change the venue.

The burden was upon the appellant to support by evidence the averments of his motion. Lacy v. State, 30 Tex. App. 119, 16 S. W. 761; Davis v. State, 19 Tex. App. 201. It was the duty of the trial judge to try the issue made by the application and controverting affidavits and to grant or refuse the application as the law and the facts should warrant. Code of Crim. Proc., art. 633. The exercise of judicial discretion thus conferred upon the trial court is not to be overturned on appeal unless it is clearly made to appear that the discretion has been abused. Lacy v. State, 30 Tex. App. 119, 16 S. W. 761; Vernon's Texas Crim. Statutes, vol. 2, p. 342, and cases listed. The case of Cox v. State, 234 S. W. 72, recently decided, is not a precedent supporting appellant's view in the instant case. In that case, the state did not, by pleading or evidence, controvert the application, and appellant, by numerous witnesses, supported his averments without contradiction. The conduct of the publishers of newspapers and the matter circulated by them was also of a character to mold sentiment against Cox and against his candidate, was supplemented by the proof of other facts which, uncontroverted, clearly established the necessity for a change of venue. In the instant case the application was controverted. There were but five witnesses used by the appellant and one by the state. The appellant's witnesses showed no such scope of information as rendered their opinions conclusive, but, on the contrary, their cross-examination disclosed that their knowledge was limited, their opportunity for observation circumscribed, and that they made no claim of knowing the state of mind existing among the great population of Harris county outside of the city of Houston. The sheriff, on the contrary, who testified for the state, disclosed a knowledge of conditions throughout the county showing that there were practically 100,000 people who did not live within the city of Houston, and to our mind, gave evidence so cogently supporting the ruling of the trial court that this court could not overturn it without usurpation of power. We gather that the evidence of prejudice, upon which the appellant relies, is traceable to the alleged consequences of newspaper publications. Those set out in the document to which we have referred appear to be such only as might come within the scope of the proper functions of a newspaper, in informing the public of current events. Such publications alone have not, within our knowledge, been held adequate to support the inference of prejudice necessary to secure a change of venue. Cox v. State, supra; Ruling Case Law, vol. 27, p. 818, § 36. Our statute upon the selection of individual jurors recognizes that even opinions formed from reading newspaper accounts may not disqualify the juror from sitting in a particular case. Code of Crim. Proc., art. 692, subd. 13; Grissom v. State, 4 Tex. App. 374; Rothschild v. State, 7 Tex. App. 519; McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683; Ashton v. State, 31 Tex. Cr. R. 479, 21 S. W. 47; Grossehmigem v. State, 57 Tex. Cr. R. 241, 121 S. W. 1113; Maxey v. State, 66 Tex. Cr. R. 234, 145 S. W. 952; Myers v. State, 71 Tex. Cr. R. 594, 160 S. W. 679; Myers v. State, 77 Tex. Cr. R. 239, 177 S. W. 1167. It is not to be expected that the men of intelligence from whom our juries are drawn and whose judgment is potent in forming public opinion will not inform themselves of the events of the day as they are reflected in the press, nor that they will generally form from such reports an opinion so fixed as to render them incapable of forming an impartial judgment from hearing the evidence revealed by the witnesses, under oath, in a given case.

The deceased, Mortie Conroy, operated a service car in the city of Houston. On the evening of February 3d, about seven o'clock, with Flora Moore, Walter Ussery, and appellant in his car, the deceased started to Goose Creek. Before starting, the appellant stated, in the presence of Flora Moore and Ussery, that it was his intention to kill the deceased and take his car and go through Louisiana into Arkansas. While yet in Harris county and while he was driving the car, the deceased was killed, the appellant taking part. After the deceased was killed, he was left by the roadside, appellant and his companions taking the car and proceeding to Louisiana, where the car was abandoned. The facts we have related, together with other details of the homicide, come from the accomplice, Flora Moore. There were circumstances to show that arrangement was made for the trip by Ussery. The body of the deceased was found about three miles from Goose Creek, a place coinciding with the testimony of the accomplice. Five wounds, inflicted by a pistol, were upon the body. One bullet was found in the clothes. Each wound was fatal. All shots entered from the front; two on the right and three on the left side in the vicinity of the nipple. Appellant's testimony and written confession support, in the main, the testimony of the accomplice.

A request was made that the court instruct the jury that they must believe, beyond a reasonable doubt—

"that there was no promise of reward in any way or the hope thereof, expressed or such as would be reasonably implied, or any inducement, held out to the defendant that persuaded him against his will to make the confession; nor that there were no threats by word or act which contributed to the confession; but that the same was made voluntarily and without any kind of influence."

The testimony of those present at the time the confession was made, except the appellant, raised, so far as we are able to discern, no issue or suggestion adverse to the voluntary character of the confession. The confession introduced in evidence was formal in all respects and upon its face in full compliance of the statute. The stenographer who took it testified to facts showing that it was voluntary; that it was induced upon no promise, or matter of a persuasive nature. Appellant testified that—

"it was not voluntarily made; that he was `crooked' to make the statement; that he had been placed in jail upon his arrival in Houston from Salem, Ill., and within...