Stephens v. State

• Decision Date: 29 March 1922
• Docket Number: (No. 6769.)
• Parties: STEPHENS v. STATE.
• Court: Texas Court of Criminal Appeals

245 S.W. 687

STEPHENS v. STATE.

(No. 6769.)

Court of Criminal Appeals of Texas.

March 29, 1922.

On Motion for Rehearing, December 20, 1922.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

G. W. Stephens was convicted of murder, and he appeals. Affirmed.

J. W. Conger, of San Antonio, for appellant.

D. A. McAskill, Dist. Atty., and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bexar county of murder, and his punishment fixed at death.

A strong presentation is made on behalf of appellant, of the fact that the grand jury that indicted him was selected by a special judge and at a special term of the court. The same question has recently been decided by us and with reference to the identical judge and court in Ex parte Holland, No. 6713, 238 S. W. 654, and because of the fact that the subject was fully discussed and decided adversely to appellant, we content ourselves with reference to that case for a decision on this point herein. For the reason stated in the Ex parte Holland Case, supra, we conclude no error is shown by appellant's bills of exception Nos. 1, 2, and 3, complaining in various ways of the lower court's action in overruling his motions to quash the indictment.

By bill of exceptions No. 4, appellant complains of the fact that the oath was administered to the jury in the usual form. The complaint seems based upon some assertion that possibly some juror desired to affirm, and not be sworn. We do not think the matter tenable. Had any juror selected upon the venire panel so desired and have indicated this to the trial court, he would have been permitted to affirm. No objection having been made by any of said jurors, we must conclude that an oath in the usual form was satisfactory to them and accepted by them as binding upon their consciences.

By his bill of exceptions No. 5 appellant complains of the fact that the state was permitted to ask a witness this question: "What part of his body was toward Stephens when he shot him on the front gallery there — his back or his face?" The complaint is that this is an assumption of the fact that deceased was in fact shot by appellant. The court overruled the objection, stating that there was sufficient evidence before him to enable him to know that the objection was groundless. We are not informed by anything in the bill of the incorrectness of the court's conclusion, and in this condition of the record no error is presented. This court's universal rule is to uphold the action of the lower court in any specific ruling, unless the bill shows its error.

When arrested, appellant was found in possession of a pistol and scabbard. Both these were offered in evidence by the state. He was arrested a few minutes after the shooting. We see no ground of objection to the introduction in evidence of said objects.

A physician who examined the body of deceased shortly after the homicide was asked how many bullet wounds he found thereon. Witness asked permission to refer to a memorandum which he had, in order to refresh his recollection. Appellant objected to the memorandum because not made by the witness. The witness stated that he made pencil notes of the number and location of the wounds at the time he examined the body, and that said pencil memorandum was made the basis of a typewritten statement thereof, this being the document now in possession of said witness, the correctness of which was verified by him after it was written and when it was returned to him on the same day or next day after the homicide. There was no error in overruling the objection and permitting the witness to refresh his recollection from a document whose correctness he had verified at or about the time of the incident. The bill of exceptions in any event would be insufficient, as it does not show what the testimony of the witness was after the objection of the appellant to his refreshing his recollection was overruled.

No error appears in bill of exceptions No. 9, wherein is presented appellant's objection to the testimony of a daughter of deceased who was asked if she knew whether or not her father had a pistol. If the witness knew the fact she was competent to testify thereto, and an objection that he may have bought one without her knowledge or may have had it in some place unknown to her, would not suffice to reject the testimony. The same hypothetical objections might be made to a statement made by any witness of facts said by him to exist within his knowledge.

The trial court did not err in overruling appellant's request for an instructed verdict. A review of the entire evidence in the case has satisfied us that, not only was the guilt of the accused sufficiently proven to take it to the jury, but that the jury's verdict in finding him guilty is also supported and justified by the evidence.

The bill of exceptions to remark of the state's attorney to the jury in his argument, which remark is not per se so inflammatory or abusive as to necessarily injure the rights of the accused, would present nothing for our consideration, in the absence of a request on the part of appellant that the jury be instructed not to consider such remarks. It is shown that the state's attorney held a cartridge in his hand which was taken from the pistol of appellant upon his arrest shortly after this homicide, across the nose of the bullet in which cartridge a cross-mark had been cut. The attorney said, "A bad murder has been committed in our county, and that is enough to make any jury bring in a verdict of death," holding up and exhibiting said cartridge. We do not believe the remark of such injurious character as to call for any action on our part, and especially in view of the fact that no request either orally or in writing was presented asking that the jury be instructed not to consider same.

The court below declined to permit appellant's counsel in his argument to narrate certain facts claimed by him to have transpired during the progress of the trial of a case in McLennan county, which said attorney stated had occurred within his knowledge and experience. We are unable to perceive any error in this. This is going beyond the ordinary rule of illustration or argument. It is permitting the attorney to become a witness and to testify to matters foreign to any issue involved, and about which he does not propose to permit cross-examination, and the truth of which could have no legitimate bearing upon the matters before the court. The court properly declined to permit such argument.

An objection to the court's charge, raised for the first time in a motion for new trial, is not sufficient to present any question relative thereto. Such exception should have been taken, if desired by appellant, before the argument begun, in accordance with the direction of our statutes.

Appellant presents three bills of exception to the form of the verdict, and attempting to raise the question that said verdict is not responsive to the evidence and should not have been received by the trial court. Said verdict was in the usual form assessing the death penalty, and we find nothing in either of said bills of exception calling for any discussion or consideration at our hands.

Appellant has a bill of exceptions to the refusal of the trial court to sustain his motion to quash the special venire. The recitals of said motion set forth that subsequent to the issuance of the venire writ, and prior to the day set for trial, there was a tremendous fall of rain amounting to a flood in San Antonio, and that on the day set apart for this trial the number of veniremen in attendance at the court was but a little over one-third the number of names drawn on said list. No effort seems to have been made on behalf of appellant, by attachment or other alias process, to have said absent veniremen brought in or their absence accounted for. In this condition of the record appellant is in no condition to complain. It is not shown how the failure to have the full number of veniremen drawn, present, and available, from which to select the jury to try appellant, injured appellant. No injury is made apparent or even claimed by appellant as resulting from the condition which he asserts prevented the absent veniremen from being present. This disposes of all of the complaints made by appellant in this record.

We see no particular good which can result from a statement of the facts. Appellant was engaged in building a house near the home of deceased, and seems to have concluded that some one was removing material and lumber from his premises. According to the state's case, he went to the home of deceased and stated to the latter's wife that he was going to have everybody in the community arrested and charged with theft of his material, but that if she would tell him who was doing it, he would make it light on her. She told him that if he wanted to make any such talk as that to make it to her husband, who was then absent. When deceased came home he went over to the building, and was heard by witnesses to say to appellant that he was not going to stand for any one to use such language as that to his wife. Immediately a shot was heard, and deceased started across away from where appellant was, stepping on the floor joist, the flooring plank not yet having been put down. He fell between the joist, and then climbed out onto the porch floor, and other shots were fired by appellant, and deceased expired within a few minutes. Appellant came out on the porch of his unfinished house, sat down and twirled a pistol in his hand and remained substantially in this position until the officers came and arrested him. He testified to a hip pocket movement on the part of deceased which led him to believe his life was in danger and that in consequence he drew his pistol and began firing. The reconciliation of these matters of...