Smith v. State, 38553
| Decision Date | 17 November 1965 |
| Docket Number | No. 38553,38553 |
| Citation | 397 S.W.2d 70 |
| Parties | Harlan G. SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Orville A. Harlan, Jack W. Knight, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for murder; the punishment, life imprisonment.
The state's evidence shows that the deceased and her seventeen-year-old son lived in a duplex at 714 East 8 1/2 Street in the city of Houston. The appellant and his family occupied the other side of the duplex at No. 716.
On the night of the killing, the deceased and a companion, Alfred Schade, left her apartment and went to a lounge where they drank some beer. When they returned to the apartment around 1:45 a. m., they observed some paint on the wall next to the door. The deceased went to appellant's apartment, knocked on the door, and asked appellant if he knew anything about the paint. Appellant replied by cursing and calling her vile names. The deceased then went to a pay station and called the police. In some twenty minutes, Officers Frank and Davis came and talked to the deceased and her companion on the porch. At the conclusion of their conversation the officers left in their patrol car, the witness Schade walked to his car to leave, and the deceased went inside her apartment.
Schade testified that before he got in his car he heard the deceased holler that she was going with him. He waited at the car and then saw the deceased on the porch and appellant standing by her with a gun. As the deceased was walking toward the steps, appellant fired the gun and the deceased fell. Schade then started to get in his car to leave and appellant shot at him. Some of the pellets entered his body. It was further shown that Officers Frank and Davis, who had just left, heard the report from a block and half away and returned to the scene. They proceeded to appellant's apartment, where he was standing in the living room. When Officer Davis asked him where the gun was, appellant pointed toward a couch. A .410-gauge single barrel shotgun was recovered from the couch. At such time, the gun contained one expended shell in the chamber and the barrel was warm. Appellant was then taken outside by the officers and as they passed the deceased's body appellant said 'you bitch, you whore,' and then called to his wife 'to get Percy Foreman, that he was the only one that could help.'
An autopsy performen upon the deceased showed that the cause of death was a shotgun wound in the neck, with a severance of the spinal cord.
Testifying as a witness in his own behalf, appellant related that on the night in question he was at home watching television in the living room; that the deceased came to the door and asked why he threw paint on her door, to which question he replied that he knew nothing about it. Later, the deceased's companion, Schade, came to his apartment and entered the living room, saying 'you s. o. b., I will fix you.' Schade then hit appellant between the eyes, breaking his glasses. Appellant related that he then got the .410-gauge shotgun and Schade retreated to the door and out on the porch. Appellant followed, and after they were on the porch Schade grabbed the gun. It went off and the deceased fell. Appellant stated that he fired ths second shot in the general direction of Schade's automobile as a warning shot. He further swore that it was Schade who pulled the trigger which fired the shot that killed the deceased and that he (appellant) did not kill her. He further denied cursing the deceased after the shooting as he passed by her body and denied that he told his wife to call Percy Foreman. He also denied having previously cursed the deceased, as testified to by her son.
The court in his charge fully instructed the jury on the law of self-defense and of accident and, in applying the law to the facts, told the jury to acquit the appellant if they believed that he accidentally shot and killed the deceased while defending himself against an unlawful attack by the said Alfred Schade.
By their verdict, the jury rejected appellant's defenses and we find the evidence sufficient to sustain the judgment of conviction.
By formal bill of exception #1, appellant insists that the court erred in overruling his "Plea To The Venire" and forcing him to select a jury from a panel of jurors summoned for the week, under the provisions of Art. 2101, Vernon's Ann.Texas Civil Statutes. It is appellant's contention that this was error because of the provision in Art. 2101, supra, which reads: 'The 'Interchangeable Jury Law' shall not apply to a selection of jurors in lunacy cases or in capital cases.'
The bill of exception was refused by the trial judge, with his reasons stated thereon. Appellant agreed to the reasons assigned by the trial judge for refusing the bill, which reasons were as follows: (1) that Harris County comes within and operates under the provisions of Article 601-A of the Vernon's Ann.Code of Criminal Procedure and that more than one hundred jurors were summoned and present for jury service as jurors for the week the case was tried; (2) appellant did not request a special venire; and (3) no objection or complaint was made to Judge E. B. Duggan, who was the judge who organized and empaneled the general criminal panel for the week.
We are unable to agree that because of the provision in Art. 2101, supra, that the 'Interchangeable Jury Law' shall not apply to the selection of jurors in capital cases the jury in the present case was selected contrary to law and was disqualified.
Subsequent to the passage of Art. 2101, supra, in 1917, Art. 601-A, V.A.C.C.P., was enacted in 1937 by the legislature, providing that in certain counties operating under the jury wheel law where more than one hundred jurors were summoned for regular jury service for the week, the judge could, at his discretion, refuse to grant a motion for special venire in a capital case and require the case to be tried by the regular jurors summoned for the week.
In 1957, the statute was amended by the enactment of Art. 601-A, V.A.C.C.P., which provides that in all counties operating under the jury wheel law where as many as one hundred jurors have been summoned for the week in which a capital case has been set for trial, the judge shall grant or refuse a motion for special venire and, upon refusal, require the case to be tried by regular jurors summoned for regular jury service for...
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Esquivel v. State
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