Porter v. State
| Decision Date | 15 March 1950 |
| Docket Number | No. 24591,24591 |
| Citation | 229 S.W.2d 68,154 Tex.Crim. 540 |
| Parties | PORTER v. STATE. |
| Court | Texas Court of Criminal Appeals |
B. F. Edwards, Clarksville, O. B. Fisher, Paris, Austin Guest, Clarksville, for appellant.
Robert Gooding, County Attorney, Clarksville, George P. Blackburn, State's Atty., of Austin, for the State.
While not as companion case in a strict sense, this case grows out of the same transaction as that of Porter v. State, Tex.Cr.App., 215 S.W.2d 889, wherein appellant's conviction for the murder of Willie Lee Stearman was reversed by this court. In the instant case the conviction is for the murder of W.J.Stearman, with punishment fixed at life imprisonment in the penitentiary.
The facts in the two cases are, in all material aspects, the same. We refer to the former opinion for a statement of the facts.
Appellant insists that the charge upon provoking the difficulty was not warranted, under the facts, and that the charge, as given, was erroneous.
Each of these contentions was expressly overruled in the former opinion, which thereby became, as to those questions, the law of the case, and will be overruled only when clearly wrong and harmful. 4 Tex.Jur., Sec. 378, p. 533.
In view of appellant's insistence that he was not afforded the opportunity of challenging our former conclusion upon those questions inasmuch as the case was reversed for other reasons, we have again examined the record and remain convinced that the facts warranted the trial court in submitting to the jury the law of provoking the difficulty and that the charge was not erroneous.
Upon cross-examination of the appellant, he was asked if he had not been convicted in 1940 in the Superior Court of Wayne County, North Carolina, of a felony, to which question he replied that he did not know. He was then asked if he was not convicted of an offense in 1940 in the Superior Court of Wayne County, North Carolina, for which he went to the state prison of North Carolina.
Appellant's objection to the last question was sustained.
It appears that the state, in view of the appellant's answer that he did not know whether he had been convicted of a felony, endeavored to prove by certified copies of documents and certificates from the State of North Carolina that he had been so convicted.
To the introduction of these, appellant vigorously objected, and he brings forward several bills of exception complaining thereof.
These bills of exception are all qualified by the trial court to show that the documents were not offered in evidence before the jury and that no objection or exception was ever made to the documents or to anything contained therein. The statement of facts, also, reflects that the documents were not received in evidence. Obviously, as qualified, the bills of exception fail to reflect error.
It is true that to each of the bills of exception relating to the matter just discussed, appellant's counsel noted thereon an exception to the trial court's qualifications. This exception, however, does not appear to have been called to the attention of or recognized by the trial court. An exception to a trial court's qualification to a bill of exception, in order to be effective, must be above the judge's signature or must otherwise reflect that he was made acquainted with the fact that an exception was being reserved to the qualification. Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449.
Antecedent and not too remote threats on the part of the accused towards the deceased are ordinarily admissible upon the issue of malice. Branch's P.C., Sec. 2072.
Under the rule stated, we see no error in permitting the state to prove that appellant, in referring to the deceased, said in the spring of 1947 before the killing in October, 1947, that 'he would have to kill the damned old s_____ o_____ b_____ to get rid of him. * * *'
In view of the fact that appellant claimed to have fired in self-defense against the joint and several attack of the deceased and Willie Lee Stearman, the state was authorized to prove that Willie Lee Stearman's right hand was crippled, that he could not use the fingers on that hand, and that he was right-handed.
Other bills of exception have been examined and are overruled without discussion.
No reversible error appearing, the judgment is affirmed.
Opinion approved by the Court.
On Motion for Rehearing
Having refused appellant's bill of exception No. 53,...
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