Rubenstein v. State, 37900

• Decision Date: 05 October 1966
• Docket Number: No. 37900,37900
• Citation: 407 S.W.2d 793
• Parties: Jack RUBENSTEIN, allas Jack Ruby, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 793

407 S.W.2d 793

Jack RUBENSTEIN, allas Jack Ruby, Appellant, v. The STATE of Texas, Appellee.

No. 37900.

Court of Criminal Appeals of Texas.

Oct. 5, 1966.

Rehearing Denied Nov. 16, 1966.

Phil Burleson, Dallas, Sam Houston Clinton, Jr., Austin, William M. Kunstler, New York City, Sol Dann, Detroit, Mich., and Elmer Gertz, Chicago, Ill., for appellant.

Joe H. Tonahill, Jasper, Emmett Colvin, Jr., Dallas, and Melvin M. Belli, Sr., San Francisco, Cal., amici curiae.

Henry Wade, Dist. Atty., William F. Alexander, Frank W. Watts, Wilson Johnston and James M. Williamson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Presiding Judge.

The offense is murder; the punishment, death.

Shortly after noon on November 22, 1963, the President of the United States was assassinated within the courthouse area in the city of Dallas. A short while thereafter Lee Harvey Oswald was apprehended, but only after Patrolman Tippitt was killed in an effort to question him. Oswald was placed in the Dallas city jail. Two days later on November 24, in the basement of the city jail as Oswald was being transferred to the county jail, he was shot by appellant at close range, from which wound he died. Countless thousands witnessed this shooting on television. Four days later this appellant was indicted for Oswald's murder. His sole defense was that of insanity in that he was suffering from psychomotor epilepsy.

On February 10, 1964, a change of venue hearing began in Criminal District Court No. 3 of Dallas County upon the motion of appellant to transfer the case to some county other than Dallas. The Court did not grant the change of venue; the selection of the jury began on February 17, was completed on March 3, and a verdict of guilty with punishment set at death was returned on March 14.

The voluminous record in this appeal finally reached this Court, and the case was set for submission on March 10, 1965.

Prior to submission a serious question arose as to which of many lawyers should be recognized by this Court as appellant's counsel on appeal. In view of this, we entered an order directing the trial court to hold a hearing to determine whether or not appellant had become insane since his trial and thereby rendered incapable of rationally selecting his counsel. Such hearing was held, and the record reached this Court containing a finding that appellant was presently sane, and we promptly set the case down for submission.

During the trial, over the strenuous objection of appellant that anything appellant may have said while in police custody constituted an oral confession in violation of the statutes of this State and was not admissible as res gestae, Sgt. Dean of the Dallas police testified as to a conversation floor of the Dallas city jail where he had floor of the Dallas City jail where he had been incarcerated, undressed and interrogated by other officers before Dean and Secret Service Agent Sorrells arrived at his cell. Prior to answering any of Sorrells' questions, appellant asked if his answers would be made available to 'magazines or publications' and after being assured that he was being questioned only for police purposes, appellant replied, 'I'll be glad to answer your questions.'

The time element which elapsed between appellant's arrest and the conversation in question varies between 10 and 40 minutes depending upon whether Dean's testimony at the trial or his written report made two days after the occurrence is accepted. Be this as it may, appellant was in a jail cell and had been interrogated by other officers prior to this conversation. Under none of the authorities cited in Notes 1--3 of Moore v. State, Tex.Cr.App., 380 S.W.2d 626, could this statement be held to have been spontaneously made. See also Holman v. State, 92 Tex.Cr.R. 364, 243 S.W. 1093; McBride v. State, 115 Tex.Cr.R. 378, 27 S.W.2d 1100; Bradford v. State, 122 Tex.Cr.R. 191, 54 S.W.2d 516; Hamilton v. State, 138 Tex.Cr.R. 205, 135 S.W.2d 476; Trammell v. State, 145 Tex.Cr.R. 224, 167 S.W.2d 171; Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616; and Furrh v. State, 168 Tex.Cr.R. 299, 325 S.W.2d 699, cited by appellant's counsel and counsel acting as friends of the Court. The test in this State is spontaneity and these facts do not fit the test. One who is cautious enough to inquire whether his answers to the questions to be propounded to him are to be released to news media is not speaking spontaneously.

Sorrells questioned appellant about how he had been able to penetrate the police cordon protecting the transfer of Oswald. At the conclusion of this questioning and as they were preparing to leave, according to Dean's testimony he asked appellant a question and appellant told Dean that he had seen Oswald in a police line-up two nights before and that when he saw the sarcastic sneer on Oswald's face he had decided tht if he got a chance to do so, he would kill him. Obviously this statement constituted an oral confession of premeditation made while in police custody and therefore was not admissible. The admission of this testimony was clearly injurious and calls for a reversal of this conviction.

What we have heretofore said makes it unnecessary to discuss in detail the error of the court in failing to grant appellant's motion for change of venue. Both Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, were decided after appellant's trial, but each case related to a state court trial held prior to appellant's trial and determines the law applicable to this case, and both are hereby controlling. It is abundantly clear from a careful study of both opinions of the Supreme Court of the United States and the record of this case that the trial court reversibly erred in refusing appellant's motion for change of venue. Not only are we bound legally by the holdings of the Supreme Court, but as practical public servants it becomes our duty to avoid the costs which are taxed against the State of Texas when one of our decisions fails to follow the rules announced by the Supreme Court. See also Pamplin v. Mason (CCA5th July 27, 1966), 364 F.2d 1, affirming Mason v. Pamplin, W.D.Tex.1964, 232 F.Supp. 539.

Judge Joe B. Brown, who tried this case, has recused himself from any further connection with the case and, we have concluded, properly so.

For the errors pointed out, the judgment is reversed, and the cause is remanded with directions that the venue be changed to some county other than Dallas. It is so ordered.

CONCURRING OPINION

McDONALD, Judge.

I agree with the result reached by Presiding Judge Morrison in his opinion reversing this case. However, I desire to elaborate more fully on the error of the trial court in refusing to grant the motion for change of venue. I shall recite in detail some pertinent facts in the case pertaining to the venue question.

The trial of this cause started February 10, 1964, with a change of venue proceeding. It culminated the following March 14, 1964, with the death penalty verdict. The hearing on venue and subsequent proceedings took place in the same building to which Lee Harvey Oswald was being moved at the time he was shot. This same Ruby trial building is situated approximately one hundred yards from where Lee Harvey Oswald assassinated President Kennedy two days previously.

It is apparent from the record that President Kennedy's assassination occurred at a site on a Dallas Street so close to the Ruby trial courthouse that it could be seen daily by the jurors. At the time of this trial this location was being visited by the public who were placing wreaths at the historic spot out of respect to President Kennedy. Traffic was even then becoming jammed in the area by spectators.

Dallas was being blamed directly and indirectly for President Kennedy's assassination and for allowing the shooting of Oswald by Ruby. The feeling and thought had been generated that Dallas County's deprivation of prosecuting Oswald could find atonement in the prosecution of Ruby. The writer feels it fair to assume that the citizenry of Dallas consciously and subconsciously felt Dallas was on trial and the Dallas image was uppermost in their minds to such an extent that Ruby could not be tried there fairly while the state, nation and world judged Dallas for the tragic November events.

The press had a field day with stories stating directly, indirectly, by hints and innuendoes that a Communist conspiracy existed between Oswald and Ruby. Ruby was referred to as a 'tough guy,' a 'Chicago mobster,' a strip-joint owner. Anti-Semitism against Ruby was sparked by pretrial publicity that Ruby's name had been changed from Rubenstein to Ruby.

The strong local prejudice against Ruby was reflected in the refusal of the County-operated Parkland Hospital to permit Ruby to undergo neurological testing for the purpose of determining his organic brain condition for trial purposes.

The trial judge retained the services of a prominent public relations counselor to handle the courtroom seating, the press, the trial publicity, and public relations in advance of the venue hearing and for the entire trial. Some 300 members of the news media occupied most of the seats in the courtroom.

The fact of the shooting of Oswald had been seen on television many, many times on that fateful day, November 24, 1963, in the Dallas County area, by countless thousands of citizens. This alone precluded Ruby from receiving a fair and impartial trial by a Dallas County jury. A fair and impartial trial is the rightful boast of western civilization.

Against such a background of unusual and extraordinary invasions of the expected neutral mental processes of a citizenry from which a jury is to be chosen, the Dallas County climate was one of such strong feeling that it was not humanly possible to give Ruby a fair and impartial...