Ramsour v. State, 29233

• Decision Date: 13 November 1957
• Docket Number: No. 29233,29233
• Citation: 308 S.W.2d 56,165 Tex.Crim. 481
• Parties: J. Loy RAMSOUR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 56

308 S.W.2d 56

165 Tex.Crim. 481

J. Loy RAMSOUR, Appellant, v. The STATE of Texas, Appellee.

No. 29233.

Court of Criminal Appeals of Texas.

Nov. 13, 1957.

[165 TEXCRIM 482]

Kelley, Looney, McLean & Littleton, Edinburg, for appellant.

James S. Bates, Dist. Atty., Edinburg, R. L. Lattimore, Asst. Dist. Atty., Pharr, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for murder with malice; the punishment, ten years in the penitentiary.

The evidence is undisputed that on the date alleged in the indictment the appellant killed the deceased, Walter Benson, by shooting him with a gun. The killing occurred at the home of the deceased who was the appellant's son-in-law.

According to the state's testimony the appellant followed his daughter (the deceased's wife) into a room used by the deceased as an office for the purpose of talking to them. After they entered Mrs. Benson became hysterical and threw an ash tray through the window. The deceased, who was seated behind a desk, got up and walked toward the appellant, saying, 'Come on, Loy, let's get outside. Let's don't cause a disturbance in here' and reached his hand out to put it on appellant's shoulder whereupon appellant after shoving him back produced a pistol and fired three shots which struck the deceased, two of the bullets penetrating the heart and were the major cause of death. Appellant then fired two shots at Marie Kensworthy who was seated in the room on a davenport, one of the bullets striking her in the right leg and the other in the left leg.

The testimony shows that the deceased had a can of beer in [165 TEXCRIM 483] his hand when the fatal shots were fired but there is no evidence in the record to indicate that he was armed at the time.

As a witness in his own behalf appellant admitted firing the shots which struck and killed the deceased but testified in substance that he shot the deceased in self defense when the deceased reached for his hip pocket and turned toward the desk as if to get a gun.

Appellant further testified that, during the married life of his daughter and the deceased, the deceased had been abusive and mistreated her; that on occasions his daughter would call him and his wife when the deceased was drinking and abusing her and that they would go to the home. He testified that a short time before the killing he had been told that the deceased was carrying a gun; was dangerous; that he was afraid of the deceased and that the reason that he went to the deceased's home on the occasion in question was to talk to him and his wife about having Marie Kensworthy leave the home as their guest because he did not approve of her being around their four young children.

Other witnesses called by the appellant testified in substance that the deceased drank to excess, was abusive of his wife, and of marital difficulties between them. Mrs. Helen Frances Benson, the deceased's widow, being called by the state, testified on her cross examination of being abused by the deceased when he was drinking, that on occasions she had called her father and mother to come to the home and that the deceased had threatened her and also threatened to kill her father, the appellant.

Appellant first complains of the trial court's refusal to grant a new trial bacause of certain alleged irregularties in the filling of the jury wheel from which the special venire in the case was drawn.

No challenge to the array or motion to quash the special venire was made by appellant before selection of the jury and it was not until after the verdict, in his amended motion for new trial that appellant moved the court to quash the special venire, declare the same and the jury drawn therefrom void and grant a new trial.

In the motion the appellant alleged that the special venire drawn from the jury wheel was void because the officers charged with the duty of filling the wheel had not filled the same in the [165 TEXCRIM 484] manner required by law in that in securing the names of the prospective jurors to be placed in the wheel they used the poll tax roll of Hidalgo County rather than the tax rolls of the county and that he had been deprived of a jury panel representative of the entire county as required by law because of the absence of the names of any prospective jurors in the wheel who resided within the county in the City of Mission.

The court did not err in refusing to grant a new trial.

The rule is well settled that a motion to quash comes too late when made after the jury have been accepted, empaneled and sworn, as when it is first urged in a motion in arrest of judgment, or for a new trial. 26 Tex.Jur., Sec. 74, p. 638; McMahon v. State, 17 Tex.App. 321; Flores v. State, Tex.Cr.App., 53 S.W. 634; Hernandez v. State, 47 Tex.Cr.R. 20, 81 S.W. 1210; Campbell v. State, 122 Tex.Cr.R. 494, 56 S.W.2d 460 and Resendez v. State, 151...