Renfro v. State

• Decision Date: 27 June 1951
• Docket Number: No. 25397,25397
• Citation: 156 Tex.Crim. 400,242 S.W.2d 772
• Parties: RENFRO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 772

242 S.W.2d 772

156 Tex.Crim. 400

RENFRO v. STATE.

No. 25397.

Court of Criminal Appeals of Texas.

June 27, 1951.

Rehearing Denied Oct. 24, 1951.

D. F. Sanders, J. A. Veillon, Beaumont, H. H. Shelton, Austin, for appellant.

Ramie H. Griffin, Crim, Dist. Atty., Joe B. Goodwin, Asst. Crim. Dist. Atty., Beaumont, George, P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Commissioner.

Appellant was convicted for the murder of his wife, and the jury assessed his punishment at 25 years in the penitentiary.

The killing occurred in the City of Port Arthur in front of Ship's Bell Cafe and beer tavern about midnight. Appellant is a sea-faring man who had recently returned home after a six-months' voyage as First Mate on a Texas Company ship.

Following a visit to other beer taverns and inns, appellant and the deceased, in company with Flora Hightower and her husband, L. Hightower, went to Pete's Place, and there became involved in an argument during which appellant twisted his wife's arm and she in turn threw a beer bottle at him and he left. The four soon reassembled at a place called French Village, where, after some kind of a scuffle, appellant secured the keys to their car and left.

Sometime later, the deceased and the Hightowers returned to Ship's Bell, where they had been earlier. Appellant thereafter came in with a pistol which had been kept in the glove compartment of their car and which he had unloaded. He was snapping the pistol at the table where the deceased and the Hightowers were seated, and other patrons ran out of the place. He again left the Ship's Bell. Some 15 or 20 minutes later, appellant returned and said to the deceased, 'Let's go home,' to which she replied, 'O.K.'

According to the State's testimony, appellant was pushing the deceased as they left the building, and as they got outside, she backed up against the wall. Appellant then backed away from her and fired a bullet through her heart with the pistol. Mr. Hightower then ran to appellant and was still attempting to wrest the pistol from him when the arresting officers arrived. A second shot had been fired during this struggle which did no damage.

Appellant signed a statement in which he said that he blacked out at the French Village and the next thing he remembered was when he was fighting over the gun. He also told the arresting officer, 'I killed my wife and I will have to pay the penalty, and I don't know why I killed her.'

On the trial, however, appellant testified that the gun was accidentally discharged when the deceased was attempting to take if from him. He explained that he had reloaded the gun with the intention of disposing of it.

It was also shown that the deceased, on a previous occasion, had shot appellant with the pistol and had recently threatened to kill him, and that such threat had been communicated to appellant.

Appellant first complains of the overruling of his motion for new trial based upon the contention that one of the jurors was unable to read and write and was therefore disqualified under the provisions of Article 616, Section 14, C.C.P. Testimony was heard on the motion, and without discussing the same, we think that the evidence is sufficient to sustain a finding by the trial judge that the illiteracy of the juror was known to appellant's counsel at the time the juror was accepted.

That a juror cannot read and write is a reason for challenge which may be waived, only the third, fourth and fifth grounds of challenge in Article 616, supra, being absolute disqualifications. See Art. 619, C.C.P.

We are unable to agree that the trial court erred in concluding that the ground of challenge for cause was waived. See Lowe v. State, 88 Tex.Cr.R. 316, 226 S.W. 674; Powers v. State, 69 Tex.Cr.R. 494, 154 S.W. 1020.

Appellant excepted to the charge because of the omission of an instruction on communicated threats.

As we view the testimony, the issue as to self-defense against apparent danger and threats was not raised, and the trial court was not called upon to charge the contents of Article 1258, Vernon's P.C. Appellant testified that the deceased attempted to take the pistol from him and in the attempt the shot was accidentally fired. He made no claim that in killing the deceased he was acting in self-defense, believing that from any act then done she was about to execute her threat to take his life. The court was quite liberal in submitting to the jury the law of self-defense and negligent homicide, in addition to his defense of accident, and appellant's rights were fully protected by the charge.

Bill No. 2 is multifarious and cannot be considered. It complains that the State was permitted to prove over objection: (1) that appellant had been married five times; (2) that he did not get any of the divorces; and (3) that the State was permitted to go into the details of the property settlements made in the divorce cases.

Bill No. 3 complains that the trial court declined to instruct the jury to disregard the testimony of Flora Hightower as to a statement made to her by the deceased shortly prior to the homicide and in the absence of appellant requesting the witness to see that her mother was taken care of if anything happened. The objection was first made after the witness had answered, and no reason is shown for not objecting timely thereto. The bill is insufficient to show reversible error in the court's refusal to strike the testimony. See Williams v. State, 145 Tex.Cr.R. 406, 168 S.W.2d 261; Wilson v. State, 87 Tex.Cr.R. 538, 223 S.W. 217; McCulley v. State, 103 Tex.Cr.R. 126, 280 S.W. 223.

Bill No. 4 complains of a remark of the District Attorney made in the presence of the jury to the effect that a State's witness whom he was attempting to impeach had changed her story. The court instructed the jury to disregard the remarks. We are unable to agree that the matter was of such a serious nature as to require that a mistrial be declared.

Bill No. 5 relates to the closing argument of the District Attorney wherein he was replying to the question of appellant's counsel as to why certain witnesses were not available. The District Attorney had stated that he had the grand jury statements of such witnesses and if counsel would agree, he would let the jury have...