Smith v. State, 33876
| Decision Date | 03 January 1962 |
| Docket Number | No. 33876,33876 |
| Parties | Leroy SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
W. E. Martin, Chas. F. Tucker, Houston, for appellant.
Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Erwin G. Ernst, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder with malice, with punishment of life confinement in the penitentiary as a second offender.
When this case was previously before this Court, it was reversed for jury misconduct. It is reported in Tex.Cr.App., 333 S.W.2d 385.
Following the reversal of this case, the appellant was re-indicted, alleging in addition to the primary offense a prior conviction for murder in Louisiana.
No material benefit would be derived from summarizing the testimony of the witnesses individually. There is no dispute in the fact that at approxmately 1:45 or 2:00 o'clock A.M. on the morning of February 22, 1959, just outside the Happy Day Tavern, the appellant shot and killed Johnny Rogers with a .32 caliber pistol, and the appellant admitted while testifying as a witness in his own behalf that he had been previously convicted of murder in the State of Louisiana, as alleged in the indictment.
Appellant's defense was self-defense. An eye witness in behalf of the State testified the deceased was not armed and was attempting to persuade the appellant to go home from the tavern where the difficulty arose. The appellant and several witnesses appearing in his belalf stated that the deceased was attempting to cut the appellant with a knife or some shiny object at the time the appellant shot and killed the deceased. The trial court fully charged on the law of self-defense.
The jury, after observing the witnesses and hearing them testify, resolved this conflict in the evidence against the appellant. We find the evidence sufficient to support their verdict. Appellant in brief and argument urges us to hold that the facts establish that he acted in his own self-defense. In Pruneda v. State, Tex.Cr.App., 329 S.W.2d 886, 887, this Court said: 'We have been cited no authority, nor, are we aware of any which holds that self defense is established as a matter of law.'
The record on appeal contains no formal bills of exception nor objection to the court's charge.
Appellant makes two contentions upon which he relies for reversal. His first contention is that the State's counsel injected error into the record when he was questioning the court reporter, who prepared the record at the former trial, and asked him if he prepared the record for this case, on appeal. It is noted that at various stages during the trial of this case, witnesses for both the State and appellant were sought to be impeached by use of the statement of facts as prepared by the court reporter at the previous trial. To prove up such statement of facts and account for the absence of the death weapon, the court reporter on the previous trial was called as a witness by the State. After the court reporter finished his testimony, appellant's counsel, having taken no objection to the testimony of the court reporter, then asked the court: 'I would like to make a motion out of the presence of the jury.' The jury was retired, and appe...
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