Swift v. State

• Citation: 509 S.W.2d 586
• Decision Date: 22 May 1974
• Docket Number: No. 48313,48313
• Parties: Johnny Eduardo SWIFT, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 586

509 S.W.2d 586

Johnny Eduardo SWIFT, Appellant, v. The STATE of Texas, Appellee.

No. 48313.

Court of Criminal Appeals of Texas.

May 22, 1974.

Frank M. Fitzpatrick, Jr., Waco, for appellant.

Martin D. Eichelberger, Dist. Atty., Waco, Bryan F. Russ, County Atty., Hearne, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted of murder with malice of H. C. Kelly. His punishment was assessed at 101 years.

This case was tried in the 54th District Court of McLennan County on a change of venue from the 20th District Court of Robertson County.

Appellant initially contends that the court erred in overruling his motion to quash the indictment because the grand jury commission which selected the grand jury that returned the indictment was made up in such way as to constitute racial discrimination. The record discloses that appellant is a Negro, and there were no Negroes on the grand jury commission. Evidence of the county attorney of Robertson County disclosed that to the best of his recollection, he did not think there had ever been a Negro on a grand jury commission in Robertson County. He estimated that one-third of the population of Robertson County is colored.

Appellant does not contend that discrimination was practiced in Robertson County in the selection of grand jurors, nor does he deny that Negroes served on the grand jury which returned this indictment.

This Court has consistently held that the mere fact that no Negro was appointed on the jury commission is not sufficient to show discrimination. For racial discrimination in the selection of the commissioners to be established, it must be shown that such discrimination invaded into the work of the commissioners in the selection of the lists from which the grand jurors are chosen. Lamkin v. State, 165 Tex.Cr.R. 11, 301 S.W.2d 922, cert. denied, 355 U.S. 59, 78 S.Ct. 137, 2 L.Ed.2d 107, rehearing denied, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 263; McMurrin v. State, 156 Tex.Cr.R. 434, 239 S.W.2d 632, cert. denied, 342 U.S. 874, 72 S.Ct. 115, 96 L.Ed. 657; Morris v. State, 158 Tex.Cr.R. 516, 251 S.W.2d 731, cert. denied, 345 U.S. 951, 73 S.Ct. 863, 97 L.Ed. 1374; Williams v. State, 167 Tex.Cr.R. 503, 321 S.W.2d 72, cert. denied, 359 U.S. 930, 79 S.Ct. 615, 3 L.Ed.2d 632; McNair v. State, 159 Tex.Cr.R. 405, 265 S.W.2d 105; Addison v. State, 160 Tex.Cr.R. 1, 271 S.W.2d 947; Oliver v. State, 155 Tex.Cr.R. 461, 236 S.W.2d 143.

The first ground of error is overruled.

Viewing the evidence most strongly in favor of the verdict, the record reflects the following:

H. C. Kelly, sometimes known as Jack Kelly, was, on May 17, 1972, Chairman of the Board of Directors of the Planters' and Merchants' State Bank of Hearne, and lived with his wife in Hearne. He attended to his duties at the bank on Tuesday, May 16, 1972, but failed to appear on the following day. Investigation of his home by friends on the 18th disclosed that he, his wife and 19 year old daughter, Nancy Kelly Stovall, had been killed, and their bodies were found in separate bedrooms. Dr. Jachimczk, Chief Medical Examiner of Harris County, was immediately called to the scene, and his examination disclosed that each had been stabbed and cut with a sharp instrument numerous times. H. C. Kelly's death was caused by two wounds in the back, made, in the doctor's opinion, with a knife having a blade at least four inches long. Mrs. Kelly suffered many knife wounds, and was found with an electric cord around her neck, which was broken. Cause of death was strangulation. Nancy's body had sixteen knife wounds, and her neck also had an electric cord around it, and was broken. Dr. Jachimczk estimated that Kelly had been dead for about 36 hours, and that the time of death was between 11:00 P.M. May 16 and 1:00 A.M. May 17.

Dwight Williams, 27 years old, testified that he had known Lee Murry Jurode for a number of years, and that Jurode, who formerly lived in Hearne, had lived in Albuquerque, New Mexico, for the past four years. About 8:00 P.M. on Tuesday, May 16, he was in Hearne in front of Hurt's Grocery Store when he saw Jurode arrive in company with appellant and a 'Spanish guy.' Jurode introduced appellant to Williams, who told him that they planned to go over to H. C. Kelly's home, hold his wife as hostage, take Kelly to the bank and rob 'it.' He asked Williams to join them. Williams refused to do so. ¹ Later that night, Jurode came to Williams' home and asked him to help in their plan to take Kelly to the bank to rob 'it.' Again Williams refused.

Wilford Hammond, 21 years old, had known Jurode for about 15 years. He saw Jurode at the Bossanova Club in Hearne Sunday night, May 14th, in company with appellant, a 'Spanish fellow,' and a 'colored lady.' Jurode approached him and stated that they were going to Kelly's home to get Kelly to go open the bank so they could rob 'it,' and if he refused, they were 'going to shoot and cut them and tie them up.' Hammond declined to join them. One or two nights later, at the Sunset Strip, Jurode again asked Hammond to join them, and again he refused. Hammond testified that he tried to contact the sheriff, but could not reach him. At this second time, Jurode told Hammond they were going to use the Mexican boy to try to get in the house.

Jo Ann Adams, 24 years old, testified as a State's witness. On May 13, 1972, she, appellant, Lee Murry Jurode, and Robert Duron left Albuquerque, New Mexico, where she had been living with appellant, in a white Pontiac headed for Hearne. Appellant stated that they were going to Hearne to 'rob a bank.' Appellant told her that they would 'rob the bank' and lock the old man in the vault while Jurode and Duron stayed in the house with his wife and daughter. They arrived in Hearne about 6:00 P.M. on Sunday, May 14, and went to 'The Hill,' a section of Hearne. She stayed in the car while the man talked to some people, and then they left, this time for Oklahoma City. Staying there only a short time, they left to go back to Hearne, arriving there some time on Tuesday the 16th. All four had been together all of this time. After another visit to 'The Hill,' the men took her to a friend's apartment, left her there, and later that night returned and got her. They left together in the Pontiac and drove to Oklahoma City again. There they rented an apartment. A number of guns, three suitcases, a fur stole, and other articles were taken from the truck of the car into the apartment. While there, appellant told her that at Hearne he had killed Kelly, Duron had killed Kelly's wife, and Jurode had killed the daughter.

Lieutenant N. A. Maxwell of the Oklahoma City Police Department testified that on May 22, 1972, he, with four other police officers, went to an apartment on the northwest corner of the second floor of the building located at 140 East Park Street in Oklahoma City armed with a search warrant, issued on an affidavit made by Lee Murry Jurode. At the time, appellant was in custody. The officers entered by using a key to the door given Maxwell by Jurode. In the room, in plain view, they found a number of articles which were seized and taken to the police station. Proper custody was established, and they were introduced in evidence. They included among others the following:

A Phillips Petroleum Company credit card made out to H. C. Kelly;

A BankAmericard issued to Henry C. Kelly;

A watch with the inscription 'P & M Employees 1969,' identified by James Florance, President of the Planters' and Merchants' State Bank of Hearne as having been given to deceased in 1969;

A mink stole with the name 'Reo Kelly' ² embroidered on the collar;

A suit of men's clothing with a laundry tag containing the name of 'Jack Kelly,' and the trade mark of Conway & Co. of Bryan, Texas. This suit was identified by the witness Florance as being one frequently worn by deceased in his work at the bank;

A rifle identified by Florance as being deceased's deer hunting gun;

A check with writing recognized by Florance as being that of Mrs. Kelly.

A palm print on one of the guns which, when compared with a known print of appellant, was identified by a qualified expert as being that of appellant.

The appellant did not testify before the jury. He offered only one witness, an Oklahoma City officer, whose testimony was completely negative.

In his ninth ground of error, appellant contends that the evidence is insufficient to support the verdict. Appellant, in a very brief discussion, seems to argue that the testimony of the accomplice witness Jo Ann Adams, was not sufficiently corroborated by other evidence to justify submitting the case to the jury.

In his eighth ground, appellant complains of the court's failure to charge on circumstantial evidence, as requested by appellant.

The court instructed the jury that if an offense was established Jo Ann Adams was an accomplice witness as a matter of law, and properly charged the jury on the necessity of corroborating accomplice testimony. We have heretofore summarized the evidence. Jo Ann Adams described the activities of her companions, including appellant, and testified that appellant admitted to her that he killed deceased H. C. Kelly. It was necessary, under the established rules of corroboration of the testimony of an accomplice witness, to eliminate the evidence of Jo Ann, and examine evidence of other witnesses to ascertain if there be inculpatory evidence of incriminating character which tends to connect the accused with the commission of the crime. Chambers v. State, Tex.Cr.App., 508 S.W.2d 348 (1974); Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

We have reviewed the evidence as above set forth, and find that the testimony of non-accomplice witnesses is amply sufficient not only to tend to connect the appellant with the commission of the offense, but also sufficient to support the verdict even in the absence of the testimony of Jo Ann Adams.

We also find...