Randel v. State

• Decision Date: 02 February 1949
• Docket Number: No. 24230.,24230.
• Citation: 219 S.W.2d 689
• Parties: RANDEL v. STATE.
• Court: Texas Court of Criminal Appeals

219 S.W.2d 689

RANDEL v. STATE.

No. 24230.

Court of Criminal Appeals of Texas.

February 2, 1949.

Rehearing Denied April 27, 1949.

Appeal from District Court, Ector County; Cecil C. Collings and Alton B. Chapman, Judges.

Dennis Randel was convicted of murder and he appeals.

Affirmed.

William L. Kerr and Emil C. Rassman, both of Midland, for appellant, on appeal only.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the killing of his twin brother, Dallas Randel, and by the jury given a life term in the penitentiary, and he appeals.

Appellant contends that the facts herein shown fail to show any evidence of malice upon his part and suggests a reversal hereof on account of such failure. The facts are controverted, the State showing a brutal killing in that it proved by an eye witness that these two brothers were present in the Roadside Inn on the night of the homicide and seemed to have had some kind of a disagreement over the playing of a juke box; that they finally began to push one another around; that appellant said to the deceased, "You leave me alone, and leave my business alone, and, if you do it again, I will fill you full of lead." The deceased then said to appellant, "Don't talk that way. I haven't bothered you. I am your brother." After some further conversation, they continued to push each other, and finally appellant said, "If you don't leave me alone, I will fill you full of lead, and, if you don't think I am kidding, I will do it." The deceased then backed away and placed the palm of his hand over his heart and appellant "drew his gun and fired as he went down with his gun; he pulled the gun up and shot and hit the ceiling", and deceased backed away, got out to the front door and said, "If you are going to shoot me, go ahead. I believe you are scared." Appellant then shot the deceased who had his hands up like this (indicating). The deceased was shot in the head and died immediately. No weapons were found upon his body. Between the first and second shots, the deceased said, "Go ahead and shoot me. I don't believe you will do it. Go ahead." The deceased was drunk and staggering while in this Inn and during the events above described.

Appellant and his witnesses present an entirely different picture from the State's testimony above set forth. Deceased was shown to have been an erring man, of high temper, and having the reputation of carrying a gun at all times and using the same on many occasions. He often allowed his anger to get the best of his judgment, and engaged in inexcusable acts of violence towards many people, chief among them being the appellant. He was unmarried and of no particular trade or avocation. He had not only threatened appellant to his face but also to others, and these threats were communicated to appellant. The deceased had severely cut this brother some years past. He had been indicted, convicted and served terms in the penitentiary for divers offenses and when killed, he was suffering from a broken jaw received while in jail. He had caused his brother, through fear of him, to give to the deceased sums of money many times. Many of his evil deeds were proven before the jury and known to appellant. At the time the deceased met his death, appellant claimed that deceased had his hand in under his overcoat where he carried a gun. Appellant shot once as a warning shot and the bullet went into the ceiling, but deceased continued advancing in this attitude of menace, and appellant shot him in the head in order to save his own life. To some extent appellant's version of this homicide was controverted by other defense witnesses.

It can thus be seen that there were two conflicting theories, both substantiated by proof, and the truth thereof became a matter for the jury. They evidently accepted the testimony of the State's witnesses as true, and we have no right to substitute our judgment for theirs on a question of fact.

Again, we think the State's testimony contains sufficient statements from which the jury could infer malice which could have been formed in but a moment of time, or could have arisen from the long continued mistreatments of appellant by his deceased brother, as testified to by appellant and his witnesses.

This cause went to trial before Judge Cecil C. Collings, District Judge of that district, on June 7, 1948, in the city of Odessa. The trial continued through that day. A jury was selected and 26 witnesses had testified therein. On June 8, 1948, at approximately 5:00 o'clock in the afternoon, Judge Alton B. Chapman, the regular District Judge of the 110th Judicial District, came into the court room, and after a conference between these two district judges, Judge Collings informed appellant and his attorneys that he desired to retire from the case in order to meet an important political engagement in another county, and that if agreeable to appellant and his attorneys, he would turn the trial of the case over to Judge Chapman and proceed to fill this political engagement; but that if there was any objection thereto, he would forego this engagement, whereupon, after a consultation of the attorneys with their client (appellant), such exchange of judges was agreed to, and such was stated to the court; but one of appellant's attorneys stated that he would take an exception to such an exchange. Judge Collings then stated that unless they all agreed to such proceedings, he would continue to preside at this trial. A further consultation was had by the attorneys and appellant, and they then in open court announced that such exchange was agreeable to them and to the appellant, whereupon Judge Collings asked appellant the following question: "Is this exchange of benches and my relinquishing the trial of this case to Judge Chapman entirely satisfactory to you, Mr. Randel?" To which inquiry had in open court appellant advised the court that it was entirely satisfactory with him, whereupon the jury being in retirement at such time, they were returned into court and Judge Collings made the following statement:

"Judge Alton B. Chapman of the 110th Judicial District from Floydada is here and has consented to come down and take my place the balance of the week, and at this time I am turning the case over to him and you will enjoy working for him."

No objections to such action nor exceptions thereto were ever made and none made to Judge Chapman proceeding with the trial. He heard the testimony of three more witnesses, prepared the charges to which no exceptions or objections appear to have been urged, and received the verdict of the jury.

There being no objection nor exception to this exchange of judges but an agreement thereto was had, not only by the attorneys but also by appellant himself, we are then faced with the sole proposition as to whether such action amounts to a fundamental error when raised for the first time in this appellate court. In other words, has a person on trial before the court the right or ability to waive the presence of one judge by agreeing to the substitution of another judge of equal dignity and power to the one excused? That there was such a waiver seems plain to us and is not denied by appellant, although some objection is now raised to the fact that such proceedings relative to the waiver were not taken down by the court reporter nor to be found in the record save as a qualification to said bill as found in the transcript. We set out such qualification to said bill as follows:

"`Judge Alton B. Chapman of the 110th Judicial District from Floydada is here and has consented to come down and take my place the balance of the week and at this time I am turning the case over to him and you will enjoy working for him.' That after such statement was made Judge Chapman assumed the duties of trial court and Judge Collings was sworn as a witness for the defendant and testified as such and then absented himself for the remainder of the trial of said cause.

"That at no time was there any objection made by either counsel for the Defendant or by the Defendant himself as to the exchange of judges as above set out. That at all times during the conversation and conferences held between the court and the attorneys representing both the State and the Defendant, the said Defendant, Dennis Randel, was seated in the court room and some ten feet distance from the desk of the court and that such conversation and conferences were carried on in a conversational tone, and that his said attorneys, Frank Sparks and O. E. Gerron, from time to time conferred with the said Dennis Randel as to such proceedings. That said conferences and conversations were had in open court in the presence of the Defendant and that the said Defendant consented to and agreed, by and through his said attorneys, and in person and by the means aforesaid to such exchange of judges, that is, the Honorable Cecil C. Collings to retire and the Honorable Alton B. Chapman to assume the trial of said cause.

"That no objections were ever made to said exchange although the said Judge Alton B. Chapman heard the testimony of some three or four witnesses, and said matter was not raised in motion for new trial.

"The official court reporter, in all the above proceedings, was at his regularly assigned desk some 12 feet removed from the court's bench and none of the above appears in his records of the trial, and other then, as above set out, the matters in this qualification concerning exchange of benches does not otherwise appear of record, and all such proceedings was oral."

The right to a trial by jury arose in the common law and was well known at the time of the adoption of our Federal Constitution. It has been held in practically all our different state courts that such a trial contemplated that the jury must be composed of twelve men indifferent between the prisoner and the sovereign; from the vicinage where the offense was supposed to have been...