Stalcup v. State

• Decision Date: 08 January 1936
• Docket Number: No. 17773.,17773.
• Citation: 92 S.W.2d 443
• Parties: STALCUP v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W.2d 443

STALCUP v. STATE.

No. 17773.

Court of Criminal Appeals of Texas.

January 8, 1936.

Rehearing Denied March 25, 1936.

Commissioners' Decision.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Virgil Stalcup was convicted of murder, and he appeals.

Affirmed.

W. D. Benson, Jr., and Hugh Anderson, and Robert J. Allen, all of Lubbock, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder, and his punishment was assessed at death.

On or about the 27th day of October, A. D. 1934, while the appellant, Clarence Brown, W. J. Yarborough, and a few other persons were confined in the Dickens County jail, the appellant and Clarence Brown shot and killed the sheriff and made their escape in the sheriff's car. They were later arrested in Harris county, Tex., returned to Dickens county, where they were indicted for said offense. The venue was changed from Dickens county to Lubbock county, where appellant was tried for the murder of the sheriff, resulting in a conviction as above stated.

The appellant's first complaint is that the court erred in declining to sustain his motion to quash the venire of talesmen summoned by the deputy sheriff because he, the deputy sheriff, had made a list of names of persons whom he summoned and who he knew were strong state's jurors and who were the personal friends of said officer, and purposely summoned men as talesmen whom he knew would convict appellant of the offense of which he was charged. The court heard testimony in support of the motion, and at the conclusion thereof overruled it. There is no testimony which shows that the officer in the selection and summoning said talesmen acted corruptly, or intentionally summoned men who were disqualified as jurors, or who had heard of the case and had formed an opinion as to appellant's guilt. No act of partiality on the part of the officer is shown. We are of the opinion that appellant's contention is not sustained by any testimony, and therefore overrule the same.

By bills of exception Nos. 1 to 15, both inclusive, appellant complained of the action of the trial court in permitting the district attorney to introduce as evidence a number of indictments returned by the grand juries of Wichita, Wilbarger, Potter, and Lamb counties charging the appellant with the offense of burglary and robbery, together with the judgments of conviction based thereon and the sentences pronounced upon him in each instance. These bills of exception show that the convictions were for various terms from five years up to life imprisonment. The court admitted the same as evidence on the theory of motive and intent.

The appellant contends that inasmuch as he was confined in the jail of Dickens county by reason of a bench warrant issued out of the district court of said county based upon an indictment returned against him on the 23d day of August, 1934, by the grand jury of said county, and not on the former convictions, therefore, the former convictions, indictments, and sentences were not admissible on any issue, as they merely showed extraneous offenses and were highly prejudicial. The appellant entered a plea of not guilty which placed the burden of proof of the whole case upon the state. He did not testify, and did not offer any testimony other than a complaint filed in the justice court of Dickens county charging Clarence Brown with murder of W. B. Arthur, the sheriff of said county. He also introduced two indictments returned against Clarence Brown by the grand jury of Robertson county in 1928, the judgments of conviction based on each indictment, and the sentences pronounced upon him; each case ranging from two years up to life imprisonment. The bench warrant issued by the court based upon the indictment returned by the grand jury of Dickens county was admissible as evidence to show that appellant was legally confined in jail, and to show motive on his part to escape. However, we do not believe that the state was confined in establishing motive and intent to said indictment alone because he had not been tried and had not been adjudged guilty and the result of the trial was still uncertain, but the former convictions in Wilbarger, Wichita, Potter, and Lamb counties were definitely settled which he was required to serve, regardless of what the result of the trial would be on the charge of robbery then pending against him in Dickens county. He knew that the former convictions had closed the doors leading to freedom; that his legal right to liberty was already foreclosed; that the only means by which he could regain his liberty was to escape, and this he might be willing to attempt at any price, even at the cost of human life. Hence, it is obvious that he might have been moved by the former convictions to resort to desperate and extreme means in trying to regain his liberty.

It occurs to us that the former convictions might have a distinct bearing upon his desire to escape and the degree of reckless desperation with which it might be attempted. One charged with petty theft would not have the same degree of motive to escape as one charged with robbery. One charged with burglary would not reasonably be expected to resort to the same extreme means to enable him to escape as one who had already been convicted and sentenced to life imprisonment. If appellant had been in custody on a misdemeanor charge such as simple assault or aggravated assault, it would not seem reasonable that he would have resorted to such extreme means in order to escape from jail (he had killed the sheriff), and it occurs to us that the former convictions were admissible as tending to show the inducing cause which moved him to...