Pugh v. State, 23054.

• Decision Date: 21 February 1945
• Docket Number: No. 23054.,23054.
• Parties: PUGH v. STATE.
• Court: Texas Court of Criminal Appeals

186 S.W.2d 258

PUGH v. STATE.

No. 23054.

Court of Criminal Appeals of Texas.

February 21, 1945.

Rehearing Denied April 4, 1945.

Appeal from District Court, Lynn County; J. E. Garland, Special Judge.

L. B. (Bud) Pugh was convicted of the unlawful killing of a deputy sheriff, and he appeals.

Affirmed.

Truett Smith and Tom Garrard, both of Tahoka, for appellant.

Rollin McCord, Dist. Atty., of Tahoka, and Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the unlawful killing of Mr. Con Burns, a deputy sheriff, and was by the jury given a sentence of twenty-five years in the State prison.

Appellant moved in limine for a change of venue, alleging that there was so great a prejudice against him in Lynn County that he could not therein obtain a fair and impartial trial. His motion was controverted by the State, and the issue joined before the court. Appellant offered fourteen witnesses, practically all of whom testified that it was their opinion that a fair trial could not be had in Lynn County because of the prejudice against the appellant. That there had been details of this killing published in the Lynn County News and the Lubbock Avalanche which were unfavorable to appellant. That these two papers were widely read in Lynn County, and they had heard discussions where the opinion was expressed that appellant should be executed or sent to the penitentiary for life. They thought such opinions were county wide. The State countered with nine witnesses, some of whom were county officers with a wide acquaintance throughout the county, who thought that a fair and impartial trial could be had in Lynn County. While there had been some talk about the killing immediately after it had happened, such talk seemed to have died down, and they thought a fair trial could be had in the county. Witnesses for the State included a cotton weigher for twelve years; a resident of the community for eighteen years; a hardware merchant for twenty years, at Tahoka, the county seat; a farmer from the Dixie community; Pat Swann, county commissioner; Leon Jennings, another county commissioner; Lonnie Williams, another county commissioner, as well as John Evans, a resident of Lynn County for twenty-four years, all of whom expressed the opinion that appellant could obtain a fair and impartial trial in that county. At the completion of this testimony the trial court said: "I don't feel that there has been a sufficient showing to warrant the changing of this case to another county, and your application for a change of venue is denied."

Unless there appears a clear abuse of discretion upon the part of the trial court it is our duty to uphold his above ruling. See McCrary v. State, 131 Tex. Cr.R. 233, 97 S.W.2d 236. From McNeely v. State, 104 Tex.Cr.R. 263, 283 S.W. 522, 524, we quote:

"The duty is upon the trial court to weigh the evidence, and if therefrom there arise conflicting theories, one tending to show prejudice of the nature mentioned and the other the contrary, the discretion as to the court is to adopt either. In the absence of abuse of this discretion, the judgment is not to be disturbed upon the appeal. If, however, the evidence is such that it leads to the conclusion that bias prejudice, or prejudgment of appellant or his case is such as to render it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. See Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. [990], 991, and authorities therein collated."

Also see Sanchez v. State, Tex.Cr.App., 181 S.W.2d 87, 89, in which we said:

"It is the rule in this state that if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory, it being his duty to weigh the evidence. A judgment denying the application will not be disturbed unless it be made to appear that the trial court abused his discretion with respect thereto. See Davis v. State, 120 Tex.Cr.R. 114, 28 S.W.2d 794; Willis v. State, 128 Tex.Cr.R. 504, 81 S.W.2d 693; Garza v. State, 135 Tex.Cr.R. 138, 117 S. W.2d 429," and we add Handy v. State, 139 Tex.Cr.R. 3, 138 S.W.2d 541, in which latter case the doctrine is again affirmed that the burden of showing such prejudice or prejudgment is upon appellant.

A review of the proceedings relative to the voir dire examination of prospective jurors shows that nine veniremen evidenced conscientious scruples relative to the death penalty and were excused by the court; sixteen veniremen testified that they had formed an opinion in the case that would require testimony to remove and were excused by the court; the State peremptorily challenged four veniremen, and the appellant peremptorily challenged fifteen, and the twelfth juror taken seemed to have been satisfactory to both sides. There were fifty-six jurors examined out of an originally ordered one hundred men, and upon an examination of the fifty-sixth juror the jury was completed. We are of the opinion that the earily selection of a jury free from an expressed opinion relative to this case would go far towards showing that the trial court did not abuse its discretion in holding that it was not shown that appellant's case had been prejudged by the citizens of Lynn County to such an extent that a fair and impartial trial could not be had therein.

There are sixteen bills of exceptions in the record, the first bill relating to the trial court's refusal to change the venue in this case. What we have said about we think disposes of bill No. 1, which we overrule.

Bill No. 2 complains of the State's witness Lloyd Nowell being allowed to testify relative to a conversation with the deceased just prior to the shooting in which the witness finally stated that "he (Mr. Burns) appeared to be friendly." This eye-witness to the killing had talked with appellant and also with the deceased just prior to the fatal difficulty, and gave an account of the actions and appearance of both at the actual time of the shooting, and such a statement upon the part of the witness was but a shorthand rendition of the facts and the res gestae of the killing, and was properly admitted. See Branch's Criminal Law, p. 203, Sec. 347.

Bill No. 3 relates to the testimony of Lloyd Nowell, who was asked the following question: "How long from the time the shooting started could you see Mr. Burns as he fell and did Mr. Burns live?" to which question and answer thereto appellant objected because the same would have been an opinion and conclusion of the witness. The court permitted the answer: "I think Mr. Burns was dead when he hit the ground." It was shown that the witness was within a short distance of this killing and looking at the parties at the time, and we see no valid reason why the impression made upon his mind at the time, in the presence of appellant, should not have been given.

Again in bill No. 4 it was shown that one Shorty Wilson, who was also present at the scene of the shooting, and when he saw appellant get out of his car with a gun in his hand, Nowell was asked: "What did Shorty Wilson do at that time, did he say anything?" to which the witness Nowell replied: "Shorty Wilson said: `My God, look out' and took off toward the bank." This was objected to as hearsay and out of the presence of the defendant. We think such exclamation was a part of the res gestae. It seems to have been "instinctive and made under the active influence of the transaction." See 18 Tex.Jur. p. 298; Johnson v. State, 110 Tex.Cr.R. 250, 253, 8 S.W.2d 127. If we give such statement a construction injurious towards appellant, it could only mean that a shooting was about to take place, which is not denied by anyone, and which is clearly proven. The remark itself evidences naught that would be any more injurious to appellant than the admitted facts, and those are that appellant did have a pistol in his hand, and some one shot Mr. Burns at such time, and a bystander possessed of an ordinary amount of caution had better look out. See Wade v. State, 98 Tex.Cr.R. 27, 263 S.W. 589. The bill evidences no error.

Bill of exceptions No. 5 relates to the witness Nowell testifying that the deceased, having his pistol in his hand, "never got the trigger back." Evidently the testimony intended to be elicited from the witness relates to deceased never getting the hammer—rather than the trigger —back. In any event the witness was close to the scene of the killing, and observed both parties, and should have been allowed to give his version of what he saw. If he observed that deceased never was able to cock his pistol, it was but the version of an eyewitness, and was proper testimony of the transaction itself.

Bill No. 6 relates to testimony by a witness that a short time prior to this tragedy appellant "* * * was drinking, I wouldn't call him drunk, he was drinking; he said he had been drinking; it seemed to me that he was in the mood for having a big time or something." We think this testimony to have been admissible, especially in view of the only objection being that such had already been gone over, and was not in response to anything brought out on cross-examination.

Bill No. 7 relates to the testimony of the sheriff of Floyd County relative to certain shells fired out of the deceased's pistol having a deeper indenture on the caps thereof than three certain unfired shells found in deceased's pistol after his death. We think the witness could explain whatever he found on such shells, not only to obviate a minute examination thereof by the jury, but also to aid the statement of facts in helping this appellate court to understand the difference in the indent made on such shells.

All the remaining bills relate to the trial court overruling appellant's challenges for cause of certain jurors, bill No. 8 being relative to venireman Roy Nettles. This bill shows that Mr. Nettles had formed some opinion from reading the...