Smith v. State

• Decision Date: 28 May 1941
• Docket Number: No. 21543.,21543.
• Citation: 152 S.W.2d 751
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 751

152 S.W.2d 751

SMITH v. STATE.

No. 21543.

Court of Criminal Appeals of Texas.

May 28, 1941.

Rehearing Denied June 27, 1941.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Clarence Smith was convicted for the unlawful killing of another, and he appeals.

Reversed and remanded.

Eugene Sherrod, Jr., of Wichita Falls, for appellant.

Z. D. Allen, Dist. Atty., of Wichita Falls, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The grand jury of Wichita County returned an indictment on June 17, 1938, alleging that Clarence Smith, appellant, did, on the 5th day of June, 1938, unlawfully and with malice aforethought kill Ernest Holmes by striking him with a hammer. The case was tried and resulted in a life sentence in the penitentiary. From the judgment on that trial appeal was taken to this court and the opinion will be found reported in 137 Tex. Cr.R. 634, 132 S.W.2d 264, reversing the case.

The second trial resulted in the death penalty, from which this appeal is presented.

The deceased, who was known generally as Slim Holmes, operated a garage in the colored section of the city of Wichita Falls near and around which it appears there were a great many cafes, a pool hall, barber shop and other businesses operated by negroes. The appellant grew up without parents and has spent considerable part of his time in the state orphans' home at Gilmer. Upon release from the home he had no parents and no fixed place of abode, but is shown to have wandered about for a period of time and had spent six months in prison in the state of Oklahoma for what appears to be a trivial offense. Other than this he had no criminal record.

At the time of the tragedy he was working as a shine boy in the barber shop of his uncle in the same section where Slim Holmes' garage was situated. Holmes' wife being away in Oklahoma, he was sleeping in some kind of living quarters in the garage at nights and was alone in his room there when struck a blow on his head with a hammer, from which he died. Appellant was shown to be in the vicinity at several different places both before and after the discovery of the injury to Holmes, but no one testifies to having seen him in or about the garage. It was the state's theory that the assailant's object was robbery and that the victim had been in possession of some money during the day. He came into a colored cafe intoxicated and dropped his purse, from which it could be seen that he had some bills. Appellant was present, as well as others, and saw this. A man took charge of the purse and assisted Holmes out of the cafe. This circumstance brings appellant to a knowledge that Holmes had some money.

There is other slight evidence which may, to some degree, cast a suspicion on appellant as the guilty party, but nothing to exclude the idea that someone else than appellant might have perpetrated the crime. The strongest circumstance was his flight during the night.

The state relies for conviction on a confession from appellant which is evidenced by instrument in writing, together with two supplemental statements each in writing, without which it appears the evidence would be insufficient to sustain a conviction. Nevertheless, the circumstantial evidence was utilized by the state for whatever value it may have had before the jury and relied upon to sustain the state in its contention that appellant committed the crime as against his denial thereof and his denial that he had made a voluntary confession. Contradicting the state, appellant took the stand and denied that he had voluntarily signed the statements and claimed that he was forced to do so by a series of threats and punishment by the officers which frightened him into signing whatever they asked. To some degree he is corroborated in the physical facts, particularly by the evidence of the county physician, but every statement he made was denied generally and specifically by the state's witnesses and presented an issue which the jury has passed on contrary to appellant's interest.

The evidence in the case will be referred to only when necessary in the discussion of a bill of exception herein considered.

The state offered the testimony of J. B. Thornton, as reproduced from the former trial, to the effect that he had during the day previous to the tragedy given Slim Holmes sixteen dollars. This evidence was admitted by the court upon proof tending to show that Thornton was not at the time of the trial in the state of Texas and available as a witness, but was in the state of Oklahoma. This evidence was pertinent to the state's case and was admissible under the statute only upon the condition that oath be made that the witness resided out of the state, Arts. 749 and 750, Vernon's Ann.Code Cr.Proc., or that he is dead. While we do not find it necessary to discuss all the evidence on the subject, the trial judge found as a fact on his motion for new trial that Thornton was at the time in Wichita County, Texas, and not a resident of the state of Oklahoma. He excuses his act in admitting the testimony, as well as his refusal to grant a new trial, on the ground that the evidence was admitted under the belief that the witness was out of the state.

A study of the evidence which was presented to the court as a basis for the introduction of this testimony reveals facts which would amply justify the trial court in believing that the witness was absent at the time, but there is a lack of evidence of the permanency of his residence elsewhere. Likewise, the evidence which was presented on a motion for rehearing was conclusive that the witness was in Wichita County at the very time of the trial, and the court properly found as a fact that he was.

It may be observed that our statute does not permit the introduction of testimony on the belief of the trial court, but upon the existence of a fact, and when it was learned that the court had been misled it then became his duty to correct the error which he could only do by granting the motion for a new trial.

From an opinion by Judge Henderson, in Tippett v. State, 37 S.W. 860, we quote the following pertinent statement with approval: "Concede that the state had made out a prima facie case for the introduction of the examining trial evidence of the witness, by showing that a year before that time said witness resided in the Indian Territory; yet, under the peculiar facts of this case, when it was shown that the witness was at the time of the trial, and had been for some months previous thereto, a resident of Texas, and that this fact might have been ascertained by the use of reasonable diligence on the part of the district attorney, we believe that the court should have granted the motion for a new trial. The judgment is therefore reversed, and the cause remanded."

When analyzed, we are further of the opinion that the evidence was insufficient to comply with the statutory requirement and that it was error to admit the testimony under the evidence produced. No witness testified positively that Thornton resided in Oklahoma. It was only that he told the witnesses that he was going to Oklahoma; that he wrote a card which was mailed at an Oklahoma post office, but was lacking in that positive evidence which is required to take from the party on trial his right to be confronted with his accusers, as guaranteed to him in the Constitution of the United States. Bill of Rights, Article 6; and also Art. 1, Sec. 10 of the Constitution of the State of Texas, Vernon's Ann.St.

We quote from Tex.Jur. Vol. 12, page 528, as follows: "Testimony given at a former trial of the accused or at a legal examining trial, or at an inquest, at which the defendant was confronted with the witnesses, and given an opportunity to cross-examine, may, when properly authenticated, be received against the defendant, where the witness has died or moved beyond the jurisdiction of the court. But the use of such evidence is a departure from the general rule that the defendant shall be confronted with the witness against him and should never be permitted unless it appears that the state has brought itself within the exception to the rule."

Another case definitely in point is Freeman v. State, 115 Tex. Cr.R. 66, 30 S.W. 2d 330, 331; in...