Stephens v. State, 22900.

• Decision Date: 14 June 1944
• Docket Number: No. 22900.,22900.
• Citation: 182 S.W.2d 707
• Court: Texas Court of Criminal Appeals
• Parties: STEPHENS v. STATE.

182 S.W.2d 707

STEPHENS v. STATE.

No. 22900.

Court of Criminal Appeals of Texas.

June 14, 1944.

Rehearing Denied October 18, 1944.

Appeal from District Court, Ellis County; A. R. Stout, Judge.

J. B. Stephens was convicted of murder, and he appeals.

Judgment affirmed.

Mark Smith and R. F. Chapman, both of Waxahachie, for appellant.

C. C. Randle, Co. Atty., Fred L. Wilson, Asst. Co. Atty., and Forrester Hancock, Special Prosecutor, all of Waxahachie, and Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the murder of Jess White, and by the jury he was assessed the penalty of death.

It is shown by the evidence that appellant was an escaped convict, and had been convicted of robbery in Hill County, Texas, on April 17, 1933, and assessed a penalty of 40 years in the penitentiary. In Lubbock County, on September 25, 1933, appellant was again convicted of robbery and given a life sentence in the prison. Again on June 4, 1943, appellant was convicted of robbery by firearms and sentenced to 25 years in the penitentiary.

At the time of the unfortunate incident herein chronicled appellant had escaped from the Retrieve farm where he was being confined as a convict. On the night of this tragedy the peace officers had knowledge of his escape and were on the lookout for him. Appellant had been to Dallas on the day of January 8, 1944, and had requested one Joe Kirk to drive him to Waxahachie to see appellant's mother, he having told Mr. Kirk that he was on parole from the prison and would not have to go back. Mr. Kirk and his wife, together with appellant, had driven to Waxahachie, and had stopped their car near a hospital in a somewhat unusual place. Mr. White had evidently seen this car and had taken its number, and gone to the sheriff's office to check up on the number. It was a Dallas number, and after ascertaining such he left the office, and we next hear from him, as this Dallas car was leaving town, he came up behind it in the nighttime and blew his horn. Appellant told Kirk to stop and see what was wanted, and Kirk did so. He got out and went to the officer's car, and was questioned by White, who finally asked him who that was with him in the car, and Kirk said it was J. B. Stephens. The officer then said, "Tell him to come back here, I want to see him." Kirk did so, and appellant went back to meet the officer, who searched appellant and found on him a pair of brass knucks, and evidently handcuffed him. He then told Stephens to get in the car and go with him to the police station. The officer's car then passed out of sight, going back into Waxahachie. Soon thereafter Kirk and his wife came upon this car in a ditch turned over and resting on its left side. J. B. Stephens was in this car with an automatic pistol in his hand, and said, "Joe, help me out of here." Kirk and his wife immediately left without helping Stephens, and repaired to a nearby house.

Mr. Thorn lived near where this car was lying in the ditch, and was probably the first person at the scene. The left-hand door was a couple of feet above the level of the ground, the car being down in a ditch. Thorn lifted up the door and saw a man in the car, who came up over the steering wheel with a gun in his hands and said: "Let me out or help me out of here"; the gun was a black automatic pistol, and Thorn backed off and slammed the door back down, and with some few people who had gathered at the scene left hurriedly. Mr. Champion heard the crash and went to the wrecked car. He saw a man sitting close to the car, on the outside thereof, who looked like he was hurt, and he advanced toward this man, who said: "Don't come down here," and when Champion got about six feet away such man raised up with a large calibre gun and said: "I told you not to come down here, I'll kill you," and Champion said: "Don't do that. I came down here to help you," and appellant said: "Well, get over there and get those keys and get these handcuffs off my hands." Champion said: "Where are they?" and the man said: "Over there". Mr. Champion finally went away and left appellant on the ground.

Mr. Murdock, who was passing by, approached the wreck, and he and his son went down to the car. He noticed a man just outside the car lying on his left side with something in his hand that looked like a stick but turned out to be a shot gun. This man was the appellant, who said: "I killed one son-of-a-bitch and I'll kill another," and he said: "I killed him," and nodded his head toward the car like that, and said: "I killed him, and I'll kill you," and waved the gun toward Murdock, who grabbed the gun and took it away from appellant, who was handcuffed, and his face covered with blood, and his right leg broken. The right half of the windshield was broken out and inside the car was Jess White, sitting on the right side, crouched over in the seat. Mr. White was nodding his head as though trying to speak but could not talk.

Buddy Vinson, an ambulance driver, came up to the scene and parked close to the wreck; he saw a man on the ground about seven feet from the car. As he walked up to the man on the ground that man said: "Get that other guy out of the car," and "that was about the time he snapped the gun. It was a dark looking gun; it sounded like the pistol was snapped, but I don't know that it was not the handcuffs striking against the pistol."

There was a nickel plated 32 calibre gun found near the scene. The dark looking automatic, a 45 Colt, and the shot gun belonged to Mr. White; evidently the 32 belonged to appellant. Mr. White was shot in the left leg the bullet ranging downward; he was also shot in the neck by a small calibre bullet which went through the neck and caused his quick death; this wound was powder burned, evidently the bullet having been fired from a gun about four or five inches from the neck. The nickel plated gun had jammed and had other bullets in the magazine. The larger automatic had lost its cartridge clip and was unloaded, but was cocked. Appellant's right leg was broken, and it was evident that he had been shot with the larger automatic. Mr. White did not speak but died on the way to the hospital.

Appellant insists that it was error to admit in evidence proof of his former convictions, bearing confinement of a lifetime in the penitentiary, 40 years and 25 years therein. Evidently this testimony was admitted under the former decisions of this court which will be found collated and discussed in the late cases of Stalcup v. State, 130 Tex.Cr.R. 119, 92 S.W.2d 443, and Beard v. State, Tex.Cr.App., 171 S.W. 2d 869. In line with the reasoning set forth in these cases and those therein discussed, we think the evidence of the pending punishments as shown by these previous convictions could be utilized by the State in order to show a motive for this killing. This holding disposes of bills of exceptions Nos. 1, 2, 3, 4, 5 and 6, all complaining of the introduction of such former convictions.

Bill of exceptions No. 7 complains of the State being allowed to show by J. C. Roberts, Record Clerk of the State prison at Huntsville, the entries on said record that evidenced appellant's status as a convict in such prison. It was shown by Roberts that these were public permanent records of the prison correctly kept, and according to a system under the witness' supervision at the prison. We think same was admissible under Article 6166a et seq., Vernon's Ann.Civ.St., and Scoggins v. State, 92 Tex.Cr.R. 424, 244 S.W. 535; Gaines v. State, Tex.Cr.App., 176 S.W.2d 315; 20 Am.Jur., p. 908,

Bill of exceptions No. 8 complains of the trial court permitting proof that appellant was an inmate of the State penitentiary, and bill No. 9 complains because the State was permitted to prove that appellant had escaped therefrom. We think it permissible to show such, not only to evidence motive in this homicide, but also to justify the deceased in attempting to retake appellant without having in his possession a warrant. It was decided in the early case of Ex parte Sherwood, 29 Tex.App. 234, 15 S.W. 812, that the rule of the common law applied in matters relating to the arrest of an escaped convict, and under that rule either an officer or a private citizen is authorized to arrest an escaped convict without warrant. It therefore follows that the State had the right to prove that appellant was such a convict.

Appellant complains by bill of exceptions No. 10, as well as by objections to the court's charge, as well as by means of a requested special charge, on account of the fact that the trial court failed to instruct the jury on the law of circumstantial evidence. A perusal of the evidence shows that in this cause the final facts of this regrettable tragedy must be shrouded in the silence of the participants herein. Mr. White cannot tell us, and said no word just prior to his decease. Appellant exercised his right to remain silent thereon during this trial. Thus it is true, much of the facts surrounding this killing of a necessity had to be based upon circumstances and a deduction therefrom. Appellant by inference, would have had the jury...