Pelton v. State, 30498
| Decision Date | 04 March 1959 |
| Docket Number | No. 30498,30498 |
| Citation | 322 S.W.2d 529,167 Tex.Crim. 649 |
| Court | Texas Court of Criminal Appeals |
| Parties | Durwood E. PELTON, Appellant, v. STATE of Texas, Appellee. |
Sam L. Harrison, Leonard Brown, San Antonio, for appellant.
Charles J. Lieck, Jr., Dist. Atty., James E. Barlow and Crawford B. Reeder, Asst. Dist. Attys., San Antonio, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, 35 years.
There is little conflict in the evidence, and it will be summarized. The appellant and the deceased had a business transaction involving $35 and some furniture on the day charged in the indictment, and the appellant felt that he had been defrauded. That night he saw the deceased leave a tavern, demanded the return of his money, and when the deceased stated that he did not have it the appellant assaulted him. According to his confession, he hit the deceased three or four times with his fist, and while the deceased was on the ground, kicked him an unknown number of times in the face with his right foot. The deceased was then picked up and put in an automobile; the appellant got in the back seat with him, and the automobile was driven around the city for approximately thirty minutes, during which time, according to the State's witnesses, the appellant continued to beat the deceased. The confession further recites that they finally found a place 'to dump him off' near a warehouse in the industrial district. State's witnesses testified that the appellant pulled the deceased out of the automobile, kicked and beat him some more, and they then drove away, leaving the deceased lying on the ground, where he was found the next morning in the snow.
The autopsy showed that the deceased's death was the result of a number of factors. There was damage to his brain which caused him to lose consciousness. His jaw was broken in three places, which caused an unusual tension on the throat muscles. The blows which he had received caused a swelling of the tissue in his windpipe, and as a result of all three he died from the loss of air. When arrested the next morning, there was blood on the appellant's shirt, pants and shoes.
The facts will be discussed more fully in connection with the contentions advanced in the appellant's brief.
He first contends that the court erred in admitting the confession. The appellant was arrested at 8:30 in the morning, and the lengthy confession was signed within two hours thereafter. According to the bill, the officer talked to the appellant twenty minutes before 'the defendant gave the statement.' In his brief, the appellant states that he was carried to the morgue and shown the body of the deceased prior to the signing of the confession. In his testimony, the appellant says that this trip was made after he signed the confession and because he kept insisting that the deceased was not dead. There is ample evidence that the confession was freely and voluntarily given, and the appellant merely claims that he signed the same because he was told to and that he did not read it, and yet his signature appears on each page.
Bill of exception No. 2 complains of the action of the court in permitting the State to plead surprise and prove the contents of a statement which had been made by the witness Maxey. In connection with this bill, we deem it sufficient to observe that the procedure which was employed was as near perfect as the writer has observed. When the witness did not testify as expected, the jury were withdrawn, and State's counsel testified fully as to his prior conversations with the witness and demonstrated that he was in fact surprised. The witness was then questioned from his former statement and admitted that the statement was correct.
Bill of exception No. 3 complains of the failure of the court to grant an instructed verdict at the conclusion of the State's evidence and need not be discussed.
Bill of exception No. 4 complains of the failure of the court to 'reduce the accusation from murder with malice to murder without malice.' We are cited no authority...
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Hughes v. State
...Procedure provision which permitted impeachment of one's own witness when that witness' testimony injured the calling party. Pelton v. State, 322 S.W.2d 529 (1959). The exception prevented parties from calling witnesses who they knew would testify unfavorably for the sole purpose of getting......
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Hughes v. State
...Procedure provision which permitted impeachment of one's own witness when that witness' testimony injured the calling party. Pelton v. State, 322 S.W.2d 529 (1959). The exception prevented parties from calling witnesses who they knew would testify unfavorably for the sole purpose of getting......
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Norwood v. State
...Tex.Cr.App., 417 S.W.2d 59. Further, surprise must be shown. The proper procedure for showing surprise is discussed in Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529.2 Art. 36.24, V.A.C.C.P., provides: 'The sheriff of the county shall furnish the court with a bailiff during the trial of......