St. Clair v. State

• Decision Date: 10 March 1926
• Docket Number: (No. 9273.)
• Citation: St. Clair v. State, 284 S.W. 571, 104 Tex.Cr.R. 423 (Tex. Crim. App. 1926)
• Parties: ST. CLAIR v. STATE.
• Court: Texas Court of Criminal Appeals

284 S.W. 571

ST. CLAIR v. STATE.

(No. 9273.)

Court of Criminal Appeals of Texas.

March 10, 1926.

Rehearing Denied June 9, 1926.

Appeal from District Court, Milam County; John Watson, Judge.

Ellie St. Clair was convicted of murder, and she appeals. Affirmed.

Chambers, Wallace & Gillis, of Cameron, for appellant.

A. J. Lewis, Co. Atty., of Cameron, Tom Garrard, State's Atty., of Lubbock, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Milam county of murder, and her punishment fixed at five years in the penitentiary.

Appellant's chief contention seems based on the refusal of the learned trial judge to compel the state's attorney to deliver to her attorney certain written statements more fully hereinafter referred to. This matter is presented in several bills of exception, the substance of which will be stated and the matter generally disposed of. Lamkin, a member of the grand jury which found the bill herein, gave testimony for the state; none of his direct testimony being set out in the bill. On cross-examination he said they had before them, while considering appellant's case, a written statement signed by her. Thereupon appellant sought to have the court compel the state's attorney to produce and deliver to her counsel said statement for their inspection and use as evidence. This is bill No. 2. Bill No. 3 sets out that after the state had concluded its evidence in chief, appellant renewed her request to compel the production and delivery of "the written statement made and signed by appellant * * * for purpose of evidence," which request was refused. Bill No. 4 sets out that while appellant was testifying in her own behalf, her counsel brought out the fact that the next morning after her arrest she made a statement to the sheriff and county attorney which they wrote down and she signed — after bringing out which testimony appellant again insisted that the state be ordered to produce said written statement, which request was again refused. Bill No. 5 sets out that state witness Kennedy on direct examination, without objection, stated that on the morning after appellant's arrest she told him that certain shoes worn by her and offered in evidence could be found in a stovepipe in Henry Taylor's house; that he found them there, and said shoes were produced and testified to as having marks upon them corresponding to certain tracks found in the vicinity of the body of deceased. The bill further reveals that on cross-examination appellant's counsel asked witness if the statement about the shoes was reduced to writing and received an affirmative reply. Appellant then demanded that the written statement be produced by the county attorney, and requested the court to order this done, but the court refused. Appellant then moved the court to strike from the record the testimony of Mr. Kennedy as to what appellant had told him about the shoes, which motion was also refused.

Since bill No. 5 presents most forcibly appellant's objection, and if disposed of adversely to her contention would settle the matters raised in the other bills, it will be discussed.

The writing called for by appellant was a private paper. Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611; Davis v. State (Tex. Cr. App.) 270 S. W. 1022. Such paper becomes subject to appellant's demand for its production only when used before the jury by the state in some way by which its contents become an issue, as illustrated in the cases of Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 1706; Jones v. State, 85 Tex. Cr. R. 547, 214 S. W. 322; Rutledge v. State, 94 Tex. Cr. R. 231, 250 S. W. 698; Cottrell v. State, 91 Tex. Cr. R. 131, 237 S. W. 928; Kirkland v. State, 86 Tex. Cr. R. 597, 218 S. W. 367; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611.

The bill of exceptions in question wholly fails to show that the state had asked any question relative to the written statement, or that it had exhibited same or referred to same in any harmful way or otherwise before the jury. Asking Mr. Kennedy if appellant had made an oral statement to him as to where she had hidden the shoes worn by her at the time of the homicide called for no part of the written statement. This appears obvious. If the state had asked outright for part of the written statement made by appellant while under arrest and no objection had been interposed by the defense to the answer, we would hold such action clearly a waiver on the part of the accused.

Appellant made no objection to the testimony of Mr. Kennedy, but asked him on cross-examination if the statements of appellant were reduced to writing, and was informed that they were and that she signed it. We observe that these facts were as well known to appellant as to Mr. Kennedy, and were testified to by her when she took the stand, as was also the fact that she told Mr. Kennedy where to find the shoes. None of the bills state either in terms or effect that if appellant's attorney could inspect the written statement referred to, same would reveal anything different from or contradictory of the testimony of Mr. Kennedy, and, as above stated, when appellant took the stand she swore that what Kennedy said as to her telling him where to find the shoes was in fact the truth.

The bills are also qualified by the trial judge to show that no limitation was imposed on appellant's counsel either when she was on the witness stand or in her cross-examination of Mr. Kennedy, in the matter of eliciting everything known to either bearing on the question as to what she said about the finding of the shoes. None of the bills show error.

Bill No. 7 complains that the justice of the peace was allowed to state in substance that the shots in the body of deceased ranged upward. This was permissible. Other matters are set out in the bill as presented to the trial court, but in his qualification of same he states that he excluded all the answer save that part relating to the range of the shots. The court states that he sustained the objection and excluded the part of the answer not responsive, as to where the parties may have stood when firing the shots.

Misconduct of the jury was urged, and one juror made affidavit that the nearness of the path where deceased was killed, to the public road became an issue in the jury room, and that juror Pressley said he knew the locality and situation and that said...