Powell v. State

• Citation: 70 S.W. 218
• Parties: POWELL v. STATE.
• Decision Date: 12 November 1902
• Court: Texas Court of Criminal Appeals

70 S.W. 218

POWELL v. STATE.

Court of Criminal Appeals of Texas.

November 12, 1902.

Appeal from district court, Gregg county; Richard B. Levy, Judge.

Tom Powell was convicted of murder, and he appeals. Reversed.

T. E. Lacy, J. N. Campbell, J. M. Edwards, and Young & Stinchcomb, for appellant. John B. Howard, Claude Pollard, Dist. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the murder of his wife, and his punishment assessed at death.

The first bill of exceptions complains that the state was permitted to ask defendant while upon the stand as a witness, "Were you indicted for assault with intent to murder?" to which appellant objected because said testimony was illegal and inadmissible, being irrelevant and immaterial to any issue, and was asked only for the purpose of prejudicing the minds of the jury against defendant, and that the record, if any, showing the same, was the best evidence. The court overruled the objections, and appellant answered, "Yes, sir; indicted for assault with intent to murder." There was no error in this. Where appellant takes the stand in his own behalf, it is proper and legitimate to ask him on cross-examination if he has been indicted for a felony. Brittain v. State, 36 Tex. Cr. R. 410, 37 S. W. 758; Williford v. Same, 36 Tex. Cr. R. 424, 37 S. W. 761.

His second bill complains that the court erred in permitting the state to ask appellant, on cross-examination, the following question: "Were you indicted for aggravated assault upon your wife?" to which question defendant answered, "Yes, sir; I was indicted for aggravated assault upon my wife." It is proper on cross-examination to elicit any fact from appellant that goes to show animus toward deceased, or motive for the crime. Certainly, if appellant admitted an assault upon his wife previous to the murdering of his wife, this testimony would be legitimate, going to show animus on the part of appellant toward deceased.

Bill No. 3 complains of the following: "That J. B. Howard, prosecuting counsel, in his opening argument to the jury in said cause, in behalf of the state, made the following remarks: `Gentlemen of the jury, if you don't hang this negro, we will have such scenes as we are going to have at Lancing.'" The trial court appended the following explanation to the bill: "That the attorney was promptly admonished by the court, and the jury at once instructed by the court to wholly disregard any statement made by attorney, and to be influenced by nothing except evidence adduced on the witness stand. In this connection the further statement is made concerning the probable influence of the Lancing lynching upon the jury. A white lady was outraged by Dud Morgan at Lancing, in Hamilton county, on Saturday, May 17th, and he escaped arrest. A posse of men pursued him, and he was captured in Titus county, at night, on May 21st. Defendant's case was called for trial May 21st, at 1:30 p. m., and jurors were examined on voir dire, and each juror taken answered that he could and would try a negro with the same degree of fairness and impartiality as he would a white man charged with the same crime. Matters were not in excitement on May 21st. The evidence in the case, as well as the argument of the counsel complained of, and one speech by defendant's counsel, had been concluded when the court at 10 o'clock p. m. adjourned for the night. Up to this time there was no excitement, nor had the rapist been captured. The jury retired for the night in the courthouse. Court convened next morning at 8 o'clock a. m., and argument of counsel at once commenced. The jury received the case and charge of the court about 10:45, and retired in jury room to consider of their verdict. About 10 o'clock it is said great excitement prevailed on streets of Longview over the report that the rapist had been captured, and would be executed at 1 o'clock. This excitement consisted in people in crowds leaving town in vehicles, and not in any other sort of demonstration. The courthouse is not on the public square, and any excitement raging on the street of Longview during the time the jury were out in the room could not be seen or heard at the courthouse, nor known of by the jury. When the negro rapist was being executed May 22d, in Hamilton county, Tex., by an outraged citizenship, the jury were in the room, locked from view or hearing. At noon hour, the excitement prevailing at Lancing was confined to Lancing, and not known of near or at the courthouse. When the crowds began to return from Lancing, it was about 1:30 p. m. and later, and at that time, to my own knowledge, the jury were in the jury room, where they could neither see nor hear anything from the outside. At 12:30 p. m. the jury ate dinner at a restaurant near the courthouse, and I was present, and no one else was there, and neither was there any excitement whatever in the restaurant around or about the jury. After the jury were returned to their room, they never came out until about 4 p. m., when they rendered the verdict returned. The remarks of counsel, nor any excitement, did not arouse the jury away from the evidence, nor tend to as a matter of fact." The record contains the affidavit of seven of the jurors, who state in substance that they were not influenced in the least by the remarks made by the state's counsel. Attached to appellant's motion for new trial is the affidavit...