Phillips v. State
| Citation | 216 S.W.2d 213 |
| Decision Date | 24 November 1948 |
| Docket Number | No. 24168.,24168. |
| Parties | PHILLIPS v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Wichita County; Temple Shell, Judge.
Hubert Phillips was convicted of murder, and he appeals.
Judgment affirmed.
Allen, Locke & Kouri, of Wichita Falls, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 5 years.
Appellant challenges the sufficiency of the evidence to sustain his conviction for murder.
The record reflects that on the night of September 23, 1947, S. T. Sanders, Hubert Phillips, and the deceased, Leroy Farrabee, were together and had been drinking beer and whiskey. Late that night they purchased some more beer and drove out several miles East of Wichita Falls. After they had driven several miles they stopped, drank some more beer, and while thus engaged, appellant and the deceased became involved in a difficulty, which resulted in Farrabee being knocked to the ground. Sanders and Phillips then returned to Wichita Falls leaving the deceased lying helpless and unconscious or semi-conscious on the side of the highway. The next morning the lifeless body of Leroy Farrabee was discovered in the barrow ditch. About 11 A.M. on said day appellant and Sanders had one C. W. Hammock drive them out to the scene of the difficulty and found that Farrabee was gone. They concluded that he had sobered up and had returned to town. About 4 P.M. that afternoon, after seeing a report in the newspaper that Leroy Farrabee had been found dead by the side of the highway, appellant immediately left Wichita Falls, went to Levelland, and from there to Oakland, California, where he was subsequently apprehended.
Dr. Joseph G. Pasternack performed an autopsy on the body of the deceased. He described the wounds and bruises on the head of the deceased and the condition of the brain after removing the top part of the skull. He found much coagulated blood in all parts of the brain indicating hemorrhages due to severe blows on different parts of the head, but he found no trace of alcohol in the contents of the stomach or urine. Appellant admitted striking the deceased at the time and place in question, knocking him down, rolling him to the edge of the highway, and left him lying there. He contended that he struck the deceased with his fist only one time and that he did not strike him with a beer bottle, however, the sheriff found two beer bottles at the scene of the difficulty.
Sanders, who was present at the time and place of the commission of the offense, testified that appellant struck the deceased three or four licks, then rolled him over to the edge of the highway, and left him lying there in a helpless and apparently unconscious condition because he did not want any more trouble with him.
Art. 1256, P.C., Vernon's Ann. P.C. art. 1256, defines murder as follows: "Whoever shall voluntarily kill any person within this State shall be guilty of murder." Voluntarily means intentionally and with design. Therefore the question here presented rests upon the intent of appellant in inflicting the injuries which resulted in death. When a deadly weapon is used in a deadly manner the presumption of intent to kill is practically conclusive, but, if the instrument or means used be not dangerous or be not used in a deadly manner, then the intent to kill will not be presumed but must be established by facts. The facts in this case show that appellant struck the deceased three or four blows with great force, by which he ruptured almost all the arteries in the brain; that after knocking him down rendering him helpless and in an unconscious, or semi-conscious, condition, he dragged him to the edge of the road, and left him lying there. The facts, in our opinion, show such a disregard for human life as would justify the jury's conclusion that he intended to kill the deceased. See Lee v. State, 44 Tex.Cr.R. 460, 72 S.W 195; Jones v. State, 133 Tex.Cr.R. 322, 110 S.W.2d 571; and Crenshaw v. State, Tex.Cr.App., 29 S.W. 787.
In the instant case, the court instructed the jury on the law of murder with and without malice, and on aggravated assault. In his charge relating to murder, he instructed the jury relative to an intent to kill. He, also, in separate paragraph, instructed the jury that unless they found and believed from the evidence beyond a reasonable doubt that the defendant at the time he struck the deceased, if he did strike him, had the specific intent to kill the said Leroy Farrabee, and unless they so found, to find him not guilty of murder with or without malice. It will be noted that the court in his charge required the jury to believe from the evidence beyond a reasonable doubt that appellant entertained the specific intent to kill before they would be authorized to convict him of murder.
Appellant next complains of the introduction in evidence of three photographs showing the deceased lying in the ditch on the side of the highway. Appellant objected to the introduction in evidence of said photographs on the ground that they did not tend to solve any issue since appellant admitted that the dead man found in the ditch was Leroy Farrabee and was in the condition when found as that testified to by Mr. Vance; that the photographs served no purpose other than to inflame the minds of the jury and were prejudicial. We see nothing reflected by the photographs which may tend to inflame the minds of the jury to the prejudice of appellant. They merely show a dead body, no blood or anything else which may inflame the minds of the jury to the prejudice of appellant. While there was no necessity for the introduction in evidence of the photographs, their mere introduction in evidence, without the exhibition of any revolting or gruesome fact or facts would not require a reversal of this case. If error at all, it is harmless error.
Bill of Exception No. 2 shows the following occurrence: While appellant was being cross examined by the district attorney he was asked if Inspectors Evans and Longnecker came to see him while he was in a hospital at Oakland, California, to which he replied in the affirmative. He was then asked if they did not ask him what happened in Texas. Appellant, through his counsel, objected to the evidence sought to be elicited on the ground that he was incarcerated at the time. Thereupon the court retired the jury and heard the evidence relative thereto with the purpose of determining whether or not appellant was under arrest at the time. The evidence disclosed...
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Gonzalez v. State, 08-14-00293-CR
...of intent, the court found the evidence insufficient to support the murder conviction. Id. at 1021. By contrast, in Phillips v. State, 216 S.W.2d 213 (Tex.Crim.App. 1948), another fist-to-cuffs altercation resulted in the affirmance of the murder conviction. There, the defendant and victim ......
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Sadler v. State
...to prove the prior beatings as evidence of the appellant's malice toward deceased. The conviction was upheld. In Phillips v. State, Tex.Cr.App., 216 S.W.2d 213, appellant and deceased got into a fight. Appellant struck deceased with his fist one to four times and then left him lying by a ro......
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Lewis v. State
...from the circumstances accompanying the use of the instrument. O'Brien v. State, 365 S.W.2d 797 (Tex.Cr.App.1963); Phillips v. State, 216 S.W.2d 213 (Tex.Cr.App.1948); 20 Tex.Digest, Homicide, k The pocket knife, alleged to be the instrument used, was not a weapon deadly per se. A specific ......
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...she should be acquitted without specifying any reason for her condition herein as an excuse for her conduct. See Phillips v. State, 152 Tex.Cr.R. 612, 216 S.W.2d 213; Wells v. State, 153 Tex.Cr.R. 331, 220 S.W.2d 148, and Milligan v. State, Tex.Cr.App., 243 S.W.2d We think the testimony is ......