Smith v. State

• Decision Date: 20 April 1921
• Docket Number: (No. 6122.)
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

232 S.W. 497

SMITH v. STATE.

(No. 6122.)

Court of Criminal Appeals of Texas.

April 20, 1921.

Rehearing Denied June 24, 1921.

COPYRIGHT MATERIAL OMITTED

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

Wallace Smith was convicted of murder and appeals. Affirmed.

McLean, Scott & McLean and Sam R. Sayers, all of Fort Worth, for appellant.

C. M. Cureton, Atty. Gen., Walace Hawkins, Tom L. Beauchamp, and R. H. Hamilton, Asst. Attys. Gen., and Jesse M. Brown, Cr. Dist. Atty., of Fort Worth, for the State.

HAWKINS, J.

The appellant was convicted of murder, and his punishment assessed at confinement in the penitentiary for a term of 35 years.

The record shows that appellant was a practicing physician in the city of Fort Worth, and had been married about two years. His wife was the daughter of the deceased, Mrs. Ruby White. During most of the time they had been married they had lived at 2137 Jennings avenue, in the city of Fort Worth, but about two weeks before the homicide appellant and his wife bought and moved to a place on Richmond avenue, in said city. The wife of appellant was pregnant at the time of the homicide, and gave birth to a child about a month thereafter. The facts further show there was a disagreement between deceased and appellant, and that the trouble came up over the wife of appellant.

It was appellant's theory, and he introduced numerous witnesses who sustained it, that there had never been any trouble between him and his wife, but that they were unusually affectionate and devoted to each other, and that all the trouble between the appellant and the deceased had been caused by wrongful acts and conduct of deceased; that she wanted appellant's wife to become a moving picture actress, and had objected to her marrying in the first place, and wanted her to leave appellant so that she might yet become a "movie star"; that she repeatedly cursed and abused appellant while talking to him over the phone, and about him to other parties; that on the day of the homicide she had succeeded in getting appellant's wife to leave her own home and go to the home of deceased, and that appellant followed her there for the purpose of persuading her to return home; that he had succeeded in doing so, and when deceased ascertained that fact she interfered and assaulted appellant; that appellant's gun fell out of the waist of his trousers into his lap, whereupon deceased seized the barrel and appellant seized the handle, and in the struggle for the possession of the gun it was discharged and deceased was killed. Appellant swore that he had no intention of killing deceased; that he struggled for possession of the gun as a matter of self-defense, feeling that if deceased got possession of it she would kill him. The pistol was fired five times. Appellant swore that he and deceased were facing each other all the time the gun was firing, that they each had hold of the gun all of the time it was firing, and that he never had any intent other than to protect himself, and that he did not fire the gun other than accidentally while struggling for its possession. He swore positively that he did not shoot deceased in the back; that she was facing him all the time, and was not shot in the back; he introduced much evidence as to the conduct of deceased towards him and his wife, showing the efforts she had made to induce his wife to leave him, his theory being that, without fault on his part, she was attempting to break up his home.

It was the theory of the state throughout the case that there was a feeling of malice on the part of appellant towards deceased and had been for some time; that the immediate trouble between them was caused by the fact that appellant had been mistreating his wife, who was in an advanced pregnant condition, and that deceased had interfered in an effort to protect her daughter, which interference had resulted in incurring the enmity of appellant; that by reason of this misconduct on the part of the appellant towards his wife she had decided to leave him on the morning of the homicide and return to her mother; that appellant and his wife had an understanding that morning about the separation, and that thereafter deceased was sent for, and went to the home of appellant, and there talked with and examined her daughter, and told appellant that, if that was the best way he could treat her daughter in the condition in which she was, she was going to take her home with her, and did do so; that a short time thereafter appellant followed her home, and shot her, in the presence of his wife. It was also the theory of the state that the shooting was not accidental, but was done intentionally and that deceased was, for the most part, shot in the back, thereby directly controverting appellant's statement of how the shooting took place.

We deem the foregoing a sufficient statement of the case, in connection with what may be said in the discussion of the legal questions raised upon the appeal.

In the first three bills of exceptions appellant complains because the court did not permit him to prove by his brother, W. A. Smith, certain conversations between appellant and one Mrs. Wilson, which occurred at appellant's home on the morning of the day of the killing, and also as to Mrs. Wilson telephoning her husband, and what she said to him about appellant. This testimony must have been excluded at the beginning of the examination of the witness, because later he testified fully about all the matters to which the bills relate as shown by reference to the statement of facts to which we are referred by the trial judge in the explanation to one of said bills. Therefore no error appears.

Bills of exception Nos. 4 and 7 cannot be considered. They attempt to complain of the action of the court in not permitting the witnesses Mrs. Arnold and C. W. Davis to answer certain questions, but fail to show what the answer would have been in either case. Authorities cited in Branch's Ann. P. C. p. 136.

While Mrs. Arnold was testifying it appears from bill of exceptions No. 5 that appellant's counsel asked her if deceased ever made any statement to witness as to why deceased wanted her daughter to leave appellant. The court sustained objection to the question, and the bill recites the witness would have answered that the reason given by deceased was "because she wanted her daughter to become a `movie star'; that is, a moving picture actress." This is all there is to the bill. It nowhere undertakes to show how this testimony was pertinent to any issue in the case. It is not the duty, nor does the law require, this court to search through the record in order to determine whether or not a matter complained of in an insufficient bill presents error. The bill must within itself show error on the part of the trial court. It must sufficiently set out the proceedings and attendant circumstances to enable this court to know certainly that an error was committed. Thompson v. State, 29 Tex. App. 208, 15 S. W. 206; Spencer v. State, 61 Tex. Cr. R. 62, 133 S. W. 1049; Oliver v. State, 65 Tex. Cr. R. 150, 144 S. W. 604; Baker v. State, 67 Tex. Cr. R. 476, 145 S. W. 607; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959. Ordinarily the statement of facts will not be looked to in aid of a defective bill, unless the trial court refers to it in his explanation. See many cases cited in Branch's Ann. P. C. p. 137, § 213. But if we do look to the statement of facts, we find many witnesses testified that deceased wanted appellant's wife to leave him to become a moving picture actress. The bill as prepared shows no error, and we find the same testimony went into the record from other sources.

The same witness was asked if she ever heard deceased make any "threats relative to whether or not she had attempted or would attempt to take the life of appellant," to which she replied, "Well, at one time when she was talking of him she says she started to kill him once, and she wished to God she had." This answer was objected to by the state and withdrawn by the court. The bill is absolutely silent as to why said testimony was admissible, and the foregoing is substantially all the bill shows. What has been said of bill No. 5 is entirely applicable to this one. It presents no error. But the statement of facts shows practically this same testimony went into the record from three other witnesses.

Appellant offered to testify as to the preparation he and his wife had made in expectation of the birth of the baby, in the way of clothing, baby carriages, etc., to show the condition of appellant's mind when deceased told him his wife could not go back to him. The state objected to him going into details, but did not object to him stating that preparations had been made; whereupon counsel stated that "they wanted it all or none." The objection was sustained, and bill of exceptions taken. The foregoing states all the bill contains. It does not disclose what the appellant would have testified. The bill is incomplete, and cannot be considered for the same reasons given with reference to bills Nos. 4 and 7.

Appellant was asked, on cross-examination, if he was not in the habit, when living at 2137 Jennings avenue, of running over to his neighbor's, Mrs. Murray, and charging his wife with receiving the company of men, and deceased with encouraging his wife in doing so, and if he did not ask Mrs. Murray who the men were who had been visiting his wife. He was also asked if he did not fire his pistol off in his room at night for the purpose of intimidating his wife, and if he did not, a few days before the killing, have his wife in a car, and drive carelessly and recklessly over a rough road to Mrs. Stark's and was asked about his conduct and language there relative to his wife. Appellant denied all matters which would indicate cruel treatment to his wife. Bills were reserved to all these questions. The state then, in rebuttal, proved by Mrs....