Saffel v. State, 15201.

• Decision Date: 11 May 1932
• Docket Number: No. 15201.,15201.
• Citation: 51 S.W.2d 393
• Parties: SAFFEL v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W.2d 393

SAFFEL v. STATE.

No. 15201.

Court of Criminal Appeals of Texas.

May 11, 1932.

Rehearing Denied June 22, 1932.

Commissioners' Decision.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Jim Saffel was convicted of murder, and he appeals.

Affirmed.

Stinson, Hair, Brooks & Duke, of Abilene, for appellant.

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

CALHOUN, J.

The offense, murder; the punishment, 25 years in the penitentiary.

The evidence in this case is very voluminous, and we deem it only necessary to give a brief summary of the most material facts. It seems from the state's evidence that the homicide occurred on the 13th day of June, 1931, about 12:30 o'clock. It further appears from the evidence of the state that the deceased, Bill Windham, and his cousin, Frank Windham, were taking some mules and a cow to a watering place, which required them to pass in front of appellant's blacksmith shop. As the deceased and Frank Windham passed the shop, it was shown that the appellant called them and said, "Howdy," to which the deceased replied, "Go to hell." The deceased and the said Frank Windham then carried their stock on to water, and on returning with said stock they were accosted by the appellant, who stated that they might as well have a settlement of their difficulties now, and the deceased replied to the appellant that if he wanted to, to come on out. The state's evidence further shows that about this time the appellant fired a shotgun and inflicted a would upon the deceased, Bill Windham, from the effect of which he died in a few minutes; that at the time the deceased was shot he was standing still and was holding a rope by which he was leading the cow which he had taken to water; also that Frank Windham was standing still at the time the deceased was shot. The state's evidence further showed that the appellant then reloaded his gun and also shot Frank Windham. The state claimed that about a week prior to the homicide the appellant had been guilty of insulting conduct towards the wife of Frank Windham which had been communicated to the said Frank Windham.

Appellant sought to justify his action on the grounds of self-defense, contending that the deceased had an open knife in his hand and was advancing towards him at the time he shot him, and also that Frank Windham had a knife in his hand and that the shots were fired by him in self-defense against both the joint and several attacks of the two Windhams. There was testimony also offered for the appellant tending to show that Frank Windham had conceived the idea of something being between his wife and the appellant, and he was aroused by his suspicions, and was on the verge of insanity, and had been making threats against the appellant and had threatened to kill him; that these threats were communicated to the appellant prior to the homicide.

By bill of exception No. 2, appellant complains of the action of the trial court in requiring him to exhaust a challenge on one W. J. Glenn. The bill shows that there appeared on the venire list the name of W. J. Gleen as juror No. 36; that said alleged juror was called, sworn, and examined by the state, and was turned over to defendant's counsel for examination, and that, upon being questioned by the defendant, the juror said his name was not W. J. Gleen, but was W. J. Glenn, whereupon appellant's counsel challenged him as not being the person whose name appeared on the venire list furnished him, contending that the juror was not acceptable to him as a juror. The court overruled appellant's objection, and refused to discharge the juror, and held that he was a proper and competent juror, to which action appellant excepted. The bill further states that, after further examination of said juror, the said juror by answers to questions had not disqualified himself, and disclosed no ground for a challenge save that heretofore stated. The court refusing to sustain appellant's challenge, the appellant then and there exercised his sixth peremptory challenge on said juror, and said juror did not sit in the case, but was excused upon the peremptory challenge of the appellant. The bill further shows that, after eleven jurors had been selected by both sides and sworn in as jurors, the defense had exhausted their fifteen peremptory challenges and had none left, and thereupon a prospective juror by the name of C. E. Phelps was presented as a juror, examined, and duly qualified and was accepted by the state and was sworn in as the twelfth juror in this case. The contention of the appellant in his bill was that had he had another challenge left, he would not have taken said twelfth juror. In the bill, no reason is given why the juror Phelps was objectionable to appellant, and the only injury to appellant as claimed in said bill was to the effect that it was shown by the evidence on appellant's motion for new trial that, after the jury had retired to consider their verdict, juror Phelps voted on the first ballot for 25 years, and that his ballot was never changed. It was also shown that on the first ballot one man voted for acquittal, two or three voted for 5 or 10 years, and two voted for 99 years.

In the bill, no reason is given why the juror Phelps was objectionable to the defendant, and no injury to defendant is shown by reason of his being on the jury. It is not claimed that the juryman Phelps had any previously formed opinion or had any bias or prejudice against the defendant. As shown by the bill, there was no error of which appellant can complain. See Johnson v. State, 108 Tex. Cr. R. 499, 1 S.W.(2d) 896; Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884.

Bill of exception No. 3 complains of the following proceedings: While the witness Frank Windham was on the witness stand, he was asked if he knew the defendant, Jim Saffel, and he answered, "Yes." He was then asked how long he had known him and he answered 12 years. He was then asked by the state, "What has been the nature of your acquaintance with him?" and the witness immediately, without giving time for an objection, answered, "He has an awfully bad character." Appellant's counsel objected to said answer, and moved to exclude it, and the court, without waiting for defendant's counsel to finish his objection, stated to the jury: "Gentlemen, you will not consider the answer to the question for any purpose. Just consider it as though it had never been answered. Now, Mr. Windham, let me admonish you now at the start of the case, you will be kind enough to answer the questions asked you and if you do not have an answer to question, say so, and do not volunteer any further information."

Appellant contends that, notwithstanding the prompt action of the court, said testimony was harmful and prejudicial to the defendant, and contributed to his conviction because it was shown on the hearing of evidence on appellant's motion for new trial that one of the jurors made the remark, "Why didn't they put a character witness on the stand for Jim Saffel?" It is shown by the record in this case that the juror who testified to the remark having been made also stated that he did not know what juror asked the question; that he just made the remark, and to the best of his memory the remark was entirely ignored by the entire jury. Another juror testified that he did not hear the statement. It was also stated by another juror that he did not think he heard any talk in the jury room as to why the defendant did not put his character in issue; that there was something mentioned about that after the jury was dismissed and they were on their way home. No other jurors testified as to what occurred in the jury room.

The question asked by the district attorney did not call for the answer of the witness, and the court promptly sustained the objection to said answer, and instructed the jury to disregard the same and not consider it for any purpose. There is nothing in the record which would seek to show that the question asked the witness was not asked in good faith, and ordinarily, when the court promptly sustains an objection to a question and the answer thereto, no error is presented, unless the question is of such nature as to be extremely hurtful. The opinion is expressed that reversible error is not shown by this bill. See Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029; also Hunter v. State, 113 Tex. Cr. R. 90, 18 S.W.(2d) 1084.

By bill of exception No. 4, appellant complains of a number of remarks made in the argument of the special prosecutor, some of which criticize defendant's lawyers in the conduct of the case, and there is presented a lengthy bill to said argument containing such arguments, the objections of the appellant, and the remarks of the court. The bill shows that almost all the objections made by the appellant were sustained by the court and the jury instructed to disregard those parts of the argument objected to. The record also shows that all requested special instructions asking the jury to disregard the arguments objected to were given by the court at the request of the appellant. Some of the arguments complained of were proper as a deduction from the facts in evidence. A bill of exception which complains of argument, part of which is permissible and pertinent and part of which is improper, will not be held to present a complaint which will be sustained by the court. See Moore v. State, 107 Tex. Cr. R. 287, 296 S. W. 308; Gray v. State, 109 Tex. Cr. R. 481, 5 S.W.(2d) 518.

By bill of exception No. 5, the appellant, among other things, complains of the refusal of the trial court to grant him a new trial because of the newly discovered evidence of a Mrs. C. D. Harrison and Mrs. Callie Sorrells. It is shown by the testimony taken on the hearing of the motion for new trial that Mrs. Harrison testified that she had lived in Anson 26 years; that she heard Mrs. Frank Windham say very soon after J. W. Windham's death that...