Salazar v. State

• Decision Date: 07 June 1939
• Docket Number: No. 20452.,20452.
• Citation: 131 S.W.2d 761
• Parties: SALAZAR v. STATE.
• Court: Texas Court of Criminal Appeals

Page 761

131 S.W.2d 761

SALAZAR v. STATE.

No. 20452.

Court of Criminal Appeals of Texas.

June 7, 1939.

Rehearing Denied October 11, 1939.

Appeal from District Court, Nolan County; John F. Sutton, Judge.

Frank Salazar was convicted of murder, and he appeals.

Affirmed.

Eugene F. Mathis, of San Angelo, and C. L. Nunn and Zollie C. Steakley, Jr., both of Sweetwater, for appellant.

Truett Barber, of Colorado City, Geo. W. Outlaw, Dist. Atty., of Sweetwater, O. C. Fisher, of San Angelo, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the murder of Paul Kennedy, and by the jury given the penalty of death.

This offense was alleged to have been committed in Tom Green County, Texas, and the trial court, on motion of appellant, changed the venue to Nolan County, where this trial was had.

The appellant, a Mexican man, had previously worked for the deceased, on deceased's farm near Miles in Tom Green County, for two years intermittently, picking cotton and doing some field work. He probably became enamored with the deceased's daughter Wilma, a girl about sixteen years of age, and had at one time been upbraided by the girl's mother for having written a note to Wilma, which Wilma had destroyed. There was a barking watch dog that belonged to Mr. Kennedy. Sometime during the night of December 15, 1938, after the father and mother and two younger sisters of Wilma had gone to bed, Wilma, who had stayed up longer than the others in order to complete some school work, went to bed with her sister Imogene, who was ten years old. Sometime after Wilma had gone to sleep she was awakened by the sound of a shot, and she heard the sound of groaning coming from the direction of her mother's room. She jumped out of bed and ran towards her mother's room, and as she reached the door a man, having a gun, grabbed her and told her to hush or she would be killed. This man dragged her out to the garage, and took some cord and tied her hands and feet. This man was the appellant herein. The dog was not in evidence during this time, although the girl was fighting and screaming. Appellant then left her and went back into the house, and she heard some noises from the house while he was there. She asked appellant what he had done and he did not answer her. She begged him to not hurt her parents, and asked to see them, but he answered nothing. He then put her in the family car of the Kennedys and closed the door, and told her he was going after her clothes, which were located in the mother's room; and she then saw a light shining in the room where her father slept, and where his dead body was afterward found. Appellant soon came back from the house with some bedding and a suit case filled with some clothes of Wilma's. He then gave her some clothes and told her to put them on, and he cut the cords that bound her hands and feet. Appellant then started the car and left with this girl.

Approximately two days thereafter relatives of the deceased found Paul Kennedy lying in his bed in rigor mortis, with a crushed skull, and a hole over his eye, his brain having been macerated, and the skull bones shattered. Evidently his skull had been crushed with some heavy blunt instrument such as an axe, and he had then been shot with a small bore shotgun, some of the wadding from a 410 shotgun being found in the brain structure itself. The mother was also dead and in rigor mortis; the child Imogene had received some kind of blow on the head that had bruised her severely, and had knocked out some of her upper teeth; the youngest child, Fay, four years old, had a gash over one eye and a skull fracture all over the top of her head. Imogene as well as Wilma identify appellant as the man that was in the house when they were awakened by the sound of the shot, and Imogene heard him tell her sister to "shut-up". She also again identifies him at the bed of the child Fay, after Imogene had jumped in bed with Fay, and relates circumstances showing he was the person who struck her, Imogene, which blow rendered her unconscious.

The testimony shows that appellant had a 410 gauge shotgun rented at the time of this tragedy, and had cartridges therefor. It further shows his flight to Travis County, and his capture there; it shows that he knew where this same shotgun was hidden under appellant's bed; where the deceased's automobile was located in Travis County, and that on appellant's person at the time of his arrest was found the deceased's bill fold. This seems to us to be a complete case of circumstantial evidence, and shows appellant's guilty participation in creating out of this country home a veritable shambles of death.

The appellant complains in bill of exceptions No. 1 of the court's action after having allowed the testimony of Imogene Kennedy, the little girl whose teeth were knocked out while appellant was standing over her in the bed with the four year old child Fay, because this girl was allowed to further testify as follows: "I don't remember anything else until I became conscious on Saturday following this Thursday night. I remember something Saturday when I was on the floor in the dining room. I could see very little because my eyes were swollen. When I ran out and got in bed with Fay my teeth were all right, but when I woke up on Saturday nearly all of my upper teeth were out and they are still out." Such bill also objecting to the fact that the witness was asked to and did stand up before the jury and open her mouth, thus exhibiting the fact of her missing upper teeth. The bill also complains of Dr. Herndon,—who was the physician attending this child on the date of the discovery of the injured and deceased persons at the Kennedy home,— being allowed to testify that he made an examination of this child Imogene and found some of her upper teeth missing. This bill is multifarious and in an ordinary case would not be considered, but in a severe penalty as this one we will proceed to consider the same. Relative to the matter of the loss of the teeth, appellant's objection merely recites that "There is no evidence that the defendant inflicted any blow capable of producing that." The answer to such an objection is that this witness testified that after she had heard the sound of a shot, and groans coming from her mother's room, she got out of her bed and jumped in the bed with her baby sister. That the appellant came and stood over her and tried to make the baby stop crying; he then "pushed her head down hard," and witness knew nothing else for quite a period of time. We think the inference could properly be drawn that appellant then struck her so hard that she became unconscious. In fact the physician testified that her injuries seemed to be so serious that unconsciousness could have resulted therefrom.

That the gruesome details of this whole transaction are res gestae we have no doubt. It was necessary to resort to circumstances in order to show who killed Paul Kennedy. Article 1257a, Vernon's Ann.P.C., reads, in part, as follows: "In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and...