Skelton v. State

• Decision Date: 03 October 1928
• Docket Number: (No. 11563.)
• Citation: 10 S.W.2d 554
• Parties: SKELTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 554

10 S.W.2d 554

SKELTON v. STATE.

(No. 11563.)

Court of Criminal Appeals of Texas.

October 3, 1928.

Rehearing Denied November 14, 1928.

Commissioners' Decision.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

J. F. Skelton was convicted of murder, and he appeals. Affirmed.

Ramey & Davidson, of Sulphur Springs, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Appellant was convicted of the murder of Clarence Smith, and his punishment fixed at nine years' confinement in the penitentiary. A former appeal of this case is reported in 106 Tex. Cr. R. 90, 291 S. W. 238.

Appellant became incensed at deceased when there was related to him certain incidents alleged to have occurred between deceased and appellant's 15 year old daughter, with which it appears one Clyde Underwood had some connection. According to the state's testimony, on the day of the homicide Clyde Underwood and deceased, Clarence Smith, were passing appellant's residence on foot, going east along a road. Appellant, observing them, procured a single-barrel shotgun, went out near to the road, and fired at short range towards them, when they both fell. Smith was mortally wounded, but Underwood got up and ran in a westerly direction, appellant following. Appellant reloaded his gun, fired at Underwood, who again fell, but subsequently escaped, and, so far as the record shows, is still alive. Appellant was indicted for assault to murder Underwood, and was tried and acquitted. At this trial he filed a plea of former conviction, alleging that he had already been convicted of the murder of Clarence Smith, which judgment of conviction was a valid subsisting judgment, and that the offense of assault to murder Underwood grew out of and was part of the same transaction for which appellant had already been convicted. On the trial of the instant case, appellant testified:

"I pleaded former jeopardy for killing Clarence Smith when I was being tried for shooting Clyde Underwood; that was my defense and I testified then like I do now in that case."

Appellant denied that he ever shot at Underwood. In the trial of this case, he filed a plea of former acquittal, based on his acquittal of the Underwood assault, which issue the court refused to submit to the jury, and which refusal is made the subject of appellant's chief contention for reversal in this court.

There were two separate and distinct assaults proven to have been committed upon Underwood, as shown above. Which of these appellant was acquitted of nowhere appears in the record. The last assault upon Underwood was wholly distinct and separate from the joint assault upon the two as already seen. In no event would an acquittal of the last assault upon Underwood alone bar a prosecution for the murder of Smith. One may commit distinct offenses of assault or culpable homicide upon different persons in the same transaction. Samuels v. State, 25 Tex. App. 537, 8 S. W. 656; Branch's P. C. p. 323. The burden was upon appellant to prove his plea of former acquittal. Fehr v. State, 36 Tex. Cr. R. 96, 35 S. W. 381, 650. The record is silent as to what issues went to the jury in the trial of appellant for the Underwood assault, or of which of two distinct assaults appellant was acquitted. It does appear that appellant pleaded as a defense in such trial his former conviction of an offense growing out of the same transaction for which he was on trial. Autrefois acquit is available only in cases where the transaction is the same, and the two indictments are susceptible of and must be sustained by the same proof. Autrefois convict only requires that the transaction or facts constituting it be the same. Wright v. State, 37 Tex. Cr. R. 630, 40 S. W. 491.

We think the appellant failed to discharge the burden which was his to bring himself within the above rules governing such defenses. He may have been tried and acquitted for the last assault upon Underwood, or upon his plea of autrefois convict. If the latter, then it would be a species of legal legerdemain that the law could not tolerate to permit him now to plead such an acquittal in bar of the present conviction.

His former conviction for the murder of Smith was not final, but, if it were pleaded as a final judgment and an acquittal of the Underwood assault procured thereby, it would indeed be a legal performance unworthy of approval to then permit him to plead such judgment in bar of the present conviction.

Two hundred and sixteen jurors had been summoned to do jury service at the term of the court at which appellant was tried. One hundred of those names had been used in drawing a venire in another murder case, and the remaining 116 were used in drawing a venire summoned in the trial of appellant. A motion was made to quash the venire because the entire 216 names were not placed in a box and appellant's venire drawn therefrom. The specific procedure followed in this case seems to have been approved as statutory in the case of Saye v. State, 50 Tex. Cr. R. 569, 99 S. W. 551. There has been no disapproval of this authority so far as we are aware, and under it appellant's contention is without merit.

Appellant criticizes the charge of the court on manslaughter in various particulars. It would lengthen this opinion unduly to discuss all of these. Suffice it to say that in our opinion, under appellant's evidence, the court correctly submitted the only phase of manslaughter which was raised by the evidence.

Finding no errors in the record, the judgment is affirmed.

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 Motion for Rehearing.

LATTIMORE, J.

Appellant seems to think we were in error in saying that the opinion in Saye v. State, 50 Tex. Cr. R. 572, 99 S. W. 551, has not been disapproved. He cites Harris v. State, 91 Tex. Cr. R. 446, 241 S. W. 175, as upholding his contention in this regard and as authority for saying that the 100 names of regular jurors for the term who had been drawn from the list of...