Russell v. State

• Decision Date: 10 June 1931
• Docket Number: No. 14294.,14294.
• Citation: 45 S.W.2d 622
• Parties: RUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W.2d 622

RUSSELL v. STATE.

No. 14294.

Court of Criminal Appeals of Texas.

June 10, 1931.

Appeal Reinstated October 28, 1931.

Rehearing Denied February 3, 1932.

Commissioners' Decision.

Appeal from District Court, Hill County; Walter L. Wray, Judge.

Bess Russell was convicted of murder, and she appeals.

Affirmed.

Collins & Martin and R. W. Calvert, all of Hillsboro, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 3 years.

It appears that appellant entered into recognizance on appeal. A copy of the recognizance has not been brought forward in the transcript. Hence we are unable to determine whether the recognizance under which appellant is enlarged meets the requirements of the statute. Where the appellant is enlarged, this court is without jurisdiction in the absence of a proper recognizance or appeal bond.

Appellant is granted 15 days in which to perfect the record.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the Court. On the Merits.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Appellant and deceased, C. V. Russell, had been married approximately three years. Deceased was employed as foreman of sixteen or eighteen workmen, who were engaged in repairing telegraph lines in Hill county. Appellant and her husband occupied a car situated on the railroad tracks, and, immediately adjacent thereto, was another car occupied as sleeping quarters for the workmen. The state's testimony was, in substance, as follows: On the night of the homicide appellant and her husband had had a minor difficulty. Deceased got in a car with two of the workment and drove away. At the time deceased left the car, appellant had gone to town. When she returned and found that deceased was away, she entered the car occupied by the other workmen and asked if her husband was present. Upon being advised that he was not in the car, she broke into the locker of one Heffner and secured therefrom an automatic pistol. Going back to her car, she awaited deceased's return. In a short time deceased and his companions drove up to the car in an automobile. Appellant approached the door of her car and commanded the man who was on the seat with her husband to get out of the way, saying that she did not want to hurt him. He begged her not to shoot. She replied that she was going to kill her husband. Deceased got out of the car and started around the automobile. Appellant fired a shot in his direction, and immediately fired two other shots, after which she made the statement that she had "got deceased." One shot took effect in deceased's head. Deceased was making no demonstration toward appellant at the time she shot him. He was unarmed.

Appellant testified that for several months deceased had been guilty of outrageous conduct toward her; that he often beat her and inflicted bruises and wounds on her body; that he was a man given to drink, and that it was generally during the time he was drunk that the assaults were made; that just prior to the homicide deceased had advised her that he was going to kill her; that on the night of the homicide deceased was in an intoxicated condition; that when he got out of the automobile and started toward her she discovered he was in a drunken condition; that she saw him reach for something, which looked like a rock; that she believed deceased was going to carry into effect the threat he had made; that she fired the fatal shot to prevent deceased from killing her. Other witnesses for appellant testified to the fact that deceased was a drinking man. Further, they testified that they had at times noticed bruises on appellant's body. Appellant testified that she had gotten the pistol for the purpose of committing suicide, but had been unable to operate it. She denied that she had secured the pistol for the purpose of killing deceased.

Bills of exception 7 and 8, and 11 to 13, inclusive, deal with the same question, and will be considered together. Appellant killed deceased on the 11th of July, 1930. Appellant testified, as heretofore stated, that deceased had on many occasions assaulted her, resulting in the infliction on her of severe wounds and bruises. Several witnesses were placed on the witness stand by appellant for the purpose of showing that they had seen bruises and wounds on appellant during the years 1928, 1929, and in January and March of 1930, the most recent date the wounds were observed being approximately three months prior to the homicide. After having testified to having seen the wounds on appellant, the witnesses were asked, in effect, to state the explanation given to them by appellant at the time they saw the wounds. It does not appear from the bills of exception that deceased was present at the time the witnesses saw the wounds. On the contrary, if we were permitted to examine the statement of facts to aid the bills of exception, we would find that deceased was not present. The state objected to the proposed testimony on the ground that it was hearsay and self-serving. It is recited in the bills of exception that the witnesses would have answered, if permitted to testify, that appellant told them that deceased had inflicted the wounds and bruises on her. The opinion is expressed that the proposed testimony was hearsay. An analogous situation was presented in Willis v. State, 91 Tex. Cr. R. 329, 239 S. W. 212. In that case the accused sought to prove by one of his witnesses that some time before the homicide he, accused, had complained to the witness that deceased had been beating his children. In holding that the testimony was inadmissible, this court said: "Deceased was not present. In the absence of more light than the bill throws upon the transaction, the exclusion of the testimony is not shown to have been error. It seems to have been hearsay." Appellant contends that the testimony was admissible under article 1257a, Vernon's Ann. P. C., in which it is provided, in substance, that, in prosecutions for homicide, the state or the accused shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing, and the previous relationship existing between the accused and the deceased. In construing this article, we have held that it does not have the effect of extending or broadening the rules of evidence in homicide cases, but merely secures to the accused the benefit of the rules of evidence available under the repealed law of manslaughter. Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689.

Bill of exception No. 9 presents the following occurrence: Appellant's mother testified that appellant remained in her home from January, 1930, until April, 1930, and that she had observed wounds and bruises on the body of appellant. Further, she testified that deceased came to her home about the first of April and that appellant went away with him. After this testimony had been given, the witness was asked by appellant's counsel what appellant said relative to leaving with deceased. It is recited in the bill of exception that the witness would have answered that appellant stated to her in the presence of deceased that deceased had told her that he would kill her if she did not return and live with him. The state's objection that the testimony was self-serving was sustained. We think the objection was well taken. In Woods v. State, 115 Tex. Cr. R....