Smith v. State, 17125.

• Decision Date: 16 January 1935
• Docket Number: No. 17125.,17125.
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

78 S.W.2d 621

SMITH v. STATE.

No. 17125.

Court of Criminal Appeals of Texas.

January 16, 1935.

Rehearing Denied February 6, 1935.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

Gabe Smith was convicted of murder, and he appeals.

Affirmed.

Edgar H. Phelps, Albert Stein, and William W. Dies, all of Houston, for appellant.

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

LATTIMORE, Judge.

Conviction for murder; punishment, death.

We find three bills of exception in the record. Bill of exceptions No. 1 is in such form as that it is difficult for us to consider same. It refers to the witnesses for the state by name, and attempts to make as part of this bill all the testimony of said witnesses as if it had been set out in the bill, and makes complaint, based on such averment, that the verdict is contrary to the evidence. The court below qualifies the bill by himself also making the statement of facts a part of this bill of exceptions. Such a bill of exceptions brings nothing before this court for review. Without any bill, and merely upon complaint presented in any form that the evidence is insufficient to support the verdict, this court would go carefully through the statement of facts in order to see whether the evidence there presented be sufficient to justify a conclusion of guilt and infliction of the death penalty.

Bill of exceptions No. 2 complains of the admission in evidence of the result of an experiment. If we understand the record, we think there is nothing in the complaint. As we understand it, appellant took the position while a witness in the case that he was inexperienced in the handling of firearms, and that he did not intend to shoot or kill the deceased at the time when he by the use and exhibition of a pistol undertook to rob deceased. He claimed that while he was trying to get possession of the money of deceased, the latter unexpectedly produced and snapped a pistol, and that being himself confused and alarmed he pressed upon the mechanism of his own automatic pistol and that it fired, killing deceased. Appellant testified that he heard deceased snap his pistol, before he fired his own pistol. It was further developed in evidence that the pistol of deceased and all the cartridges that were in it on the night of this homicide were presented in court and exhibited before the jury, and none of the cartridges showed any indentation thereon, and that the state's attorney asked a witness to take the cartridges, put them in the pistol, and fire one of them and bring it back so that it might be exhibited and show the indentation made upon the cap of the cartridge by the plunger of the pistol. The bill is not very well drawn, but we understand from its recitals that the objection of the appellant was to the introduction in evidence of the result of this experiment. The materiality of the matter...