Stanley v. State, 14634.
| Decision Date | 27 January 1932 |
| Docket Number | No. 14634.,14634. |
| Citation | 48 S.W.2d 279 |
| Parties | STANLEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.
A. E. Stanley was convicted of murder with malice aforethought, and he appeals.
Reformed, and, as so reformed, affirmed.
Horace E. Moore and Myres & Pressly, all of Fort Worth, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for ninety-nine years.
The indictment contained three counts charging appellant with the murder of Roy Hawthorne. The first count charged appellant with killing deceased by hitting, striking, and beating him with a gun. In the second count it was averred that deceased was killed by hitting, striking, and beating him with a bottle. The allegation in the third count was to the effect that deceased was killed in some way or manner and by some means, instruments, and weapons to the grand jury unknown. The testimony of the accomplice witness Butler was to the effect that Herbert Stanley, a son of appellant, one Casstevens, and appellant attacked deceased with a pistol and a bottle. This witness testified, in substance, that Casstevens struck deceased on the head with a pistol; that appellant secured a bottle and went into the bathroom, where deceased was, and that the witness heard the breaking of glass; that one of the participants secured a hammer and took it into the bathroom, where deceased was being attacked; that deceased was placed in a bathtub almost filled with water and held under the water; that thereafter the body of deceased was taken from the house in an automobile by appellant's son. The homicide occurred in appellant's house, where, according to the testimony of the accomplice witness, deceased had been invited. It appears that deceased had appeared before the grand jury and given testimony resulting in the indictment of appellant for cattle theft. It was the contention of the state that this was the motive for the killing. According to the state's testimony, the body of deceased was carried into a pasture, set fire to, and burned almost beyond recognition. One of the state's witnesses positively identified the body by a peculiar birthmark on the face. According to the testimony of an officer, appellant stated to him that he would tell about the entire transaction if given immunity. It is unnecessary to set out the facts and circumstances in the record corroborating the testimony of the accomplice witness. Suffice it to say that we deem the corroboration sufficient.
Appellant admitted that he was present when the attack upon deceased was made, but testified that he had nothing to do with the assault, and tried to prevent it. He said that his son, the accomplice witness Butler, and Casstevens attacked deceased.
The first bill of exception relates to appellant's exception to the charge of the court because of the submission of the count in the indictment charging that the means used in killing deceased were to the grand jury unknown. The three counts were submitted and the jury returned a general verdict. It was in evidence that the grand jury after diligent investigation, were unable to determine what actually caused the death of deceased. He was struck with an empty bottle; he was beaten with a pistol; and further, there was evidence that some blunt instrument had been used. Under the evidence it was proper for the court to submit the three counts to the jury. An indictment for murder may allege different means of killing, in a single count. Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. "If the means used were unknown to the grand jury, or where it is doubtful how death was caused, it may be alleged that it was done by some means unknown to the grand jury." Branch's Annotated Penal Code, § 2059; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135. The opinion is expressed that it is doubtful, under the evidence, how death was caused. It was proper for the state to plead the means used in separate counts. An election between counts, under the facts reflected by the record, was not required.
It appears from bill of exception No. 1 that state's witness Butler had been convicted in the state of Arkansas for the offense of robbery and confined in the penitentiary. The witness was brought from the penitentiary in Arkansas to Fort Worth for the purpose of testifying for the state in appellant's trial. Appellant objected to the witness being permitted to testify on the ground that he had been convicted of a felony and was confined in the penitentiary. The objection was properly overruled. The witness had been convicted subsequent to the taking effect of Chapter 13, Acts of the Thirty-Ninth Legislature, First Called Session (Vernon's Ann. C. C. P., art. 708). We held, in Fitzgerald v. State (Tex. Cr. App.) 38 S.W.(2d) 329, that persons convicted of felonies subsequent to the enactment of the act to which reference has been made are competent to testify in all criminal cases. Article 708, C. C. P. as amended (Vernon's Ann. C. C. P. art. 708), provides that all persons are competent to testify in criminal cases, except two classes. The two exceptions are set forth, namely, insane persons and children, when shown to be comprehended by the terms of the exceptions. Persons convicted of felony and confined in the penitentiary are not excepted.
Bill of exception No. 2 presents the following occurrence: Herbert Stanley and Casstevens were under indictment for the same offense as appellant, and were confined in jail at the time of appellant's trial. Appellant stated to the trial court that the witnesses could not, under the provisions of article 711, C. C. P., testify in his behalf. Nevertheless, appellant requested the court to have said parties brought from the jail in order that he might place them on the witness stand and have the benefit of the objection of the district attorney to their testimony. The witnesses being indicted for the same offense as appellant, under the provisions of articles 711, could not be introduced as witnesses for appellant. The statute expressly provides that under such conditions the codefendants may not be introduced for one another. The district attorney indicated that he would object to the witnesses testifying. The opinion is expressed that the court was warranted in refusing to permit appellant to place the witnesses on the stand in the presence of the jury.
As disclosed by bill of exception No. 5, appellant's counsel sought...
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