Taylor v. State

• Citation: 221 S.W. 611
• Decision Date: 05 November 1919
• Docket Number: (No. 4944.)
• Parties: TAYLOR v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

221 S.W. 611

TAYLOR v. STATE.

(No. 4944.)

Court of Criminal Appeals of Texas.

November 5, 1919.

On Motion for Rehearing, May 12, 1920.

Appeal from District Court, Caldwell County; Geo. Calhoun, Judge.

Elbert Taylor was convicted of murder, and he appeals. Affirmed.

See, also, 81 Tex. Cr. R. 359, 195 S. W. 1147.

C. F. Richards, of Lockhart, James L. Storey, of Houston, and Will G. Barber, of San Marcos, for appellant.

Jeffrey & Fielder and E. B. Coopwood, all of Lockhart, J. B. Hatchitt, of Wichita Falls, and E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appeal is from conviction for murder. Punishment was fixed at confinement in the penitentiary for ten years.

There is evidence in the record that for some time prior to the tragedy the deceased and appellant were not on friendly terms; that on the afternoon of the day of the homicide the deceased cast reflections upon the Taylor name, resulting in a difficulty between him and Hugh Taylor, the appellant's cousin; both were on horseback, and the deceased chased Hugh Taylor, whereupon the appellant, who was present, went to his cousin's house for the express purpose of getting a gun to use in aiding his cousin in his conflict with deceased; that, failing to get the gun, he went to the store of his uncle, where he had previously left his own shotgun, and secured it, and at the same time some shells loaded with buckshot. The deceased lived on a public road about half a mile east of Taylor's store. On the same road near the store lived Ivan Taylor, the appellant's brother, and about midway between lived the appellant. The deceased had a field or pasture on the opposite side of the road at a point west of appellant's house and east of Ivan Taylor's house, and the father of appellant lived southwest from appellant's house about 500 yards. It was shown that, after obtaining the gun and shells and loading the gun, appellant and his brother left the store at the same time, appellant on horseback and Ivan on foot, and that shortly before their departure appellant said to Ivan: "Don't shoot too low." The deceased kept his milk cows in his field or pasture mentioned, and his custom, known to appellant, was to turn them out of the pasture late in the evening. When appellant left the store, he rode first to his brother Ivan's home. Departing from the road which led to his own house, he went to his father's, and from thence to his own home; his theory and the testimony of himself and his wife tending to show that he reached his home before the homicide and remained there until after it took place, leaving the horse which he was riding in his lot. A witness named Stevens, traveling towards Taylor's store in his buggy, passed the home of deceased and stated that about that time he heard a shot fired, and saw the wife of deceased milking, she having turned part of the cows in the lot, and the others were standing in the lane, and that on going by the field or pasture of deceased this witness saw the horse of deceased bridled and saddled and loose, without a rider, and about the same time saw a man some distance away passing through the field or pasture, in which there was some undergrowth. The witness did not recognize the man he saw, though he took it to be the deceased. The man was wearing a coat, however, such as that worn by the appellant. The appellant and his wife claimed that at the time Stevens passed appellant's house appellant was standing in the lot, and that Stevens was seen by them, though Stevens disclaimed seeing any one at the appellant's house at the time. The shot was fired near sundown, and the deceased was killed by a load of buckshot fired from a shotgun entering his head. Two or three days after the homicide tracks were found in the field or pasture, some of them coinciding with the place where the man was seen by Stevens, and some at other places near where the deceased was killed, in which tracks the shoes which were obtained by the sheriff from the appellant after the homicide were fitted. The appellant testified at the trial that he was wearing boots at the time of the homicide, and so did his wife and mother. There were indications on the ground tending to show that the shot was fired from ambush. Some of these facts were uncontroverted, some established by conflicting evidence, and some by the testimony of witnesses whom the appellant sought to impeach by evidence that they had made contradictory statements.

It is true that, to sustain a verdict based upon circumstantial evidence alone, each fact necessary to a conviction must be established by a competent evidence beyond a reasonable doubt, but, the jury being judge of the facts proved, weight to be given the testimony, and the credibility of the witnesses, their finding as to the existence of a given fact is not to be overturned, for the reason that it is supported by conflicting evidence or by witnesses against whom there has been introduced discrediting testimony. Texas Code of Criminal Procedure, art. 786; Vernon's Criminal Statutes, vol. 2. 687. We cannot, therefore, sustain the appellant's contention that the evidence is insufficient because it is in part conflicting and in part the testimony of witnesses whose credibility has been assailed. On the contrary, we must assume, in passing upon the sufficiency of the evidence, that questions involving the credibility of witnesses and conflicting testimony have been determined in favor of the state. Vernon's Texas Crim. Statutes, vol. 2, p. 690, cases in notes 17, 18. While this court has the right to reverse a judgment of conviction on account of the insufficiency of the evidence (Texas Code Crim. Procedure, art. 939), and it becomes its duty to do so "if the guilt of the accused is not made to appear with reasonable certainty" (Mitchell v. State, 33 Tex. Cr. R. 577, 28 S. W. 475), no fixed rule has been devised which will in all cases furnish a certain standard. Necessarily each case must in a measure be tested by its own facts (Mitchell v. State, 33 Tex. Cr. R. 577, 28 S. W. 475; Hampton v. State, 1 Tex. App. 652; Burrill on Circumstantial Evidence, p. 737; Wills on Circumstantial Evidence, p. 188). However, when a jury, advised of the restrictions which the law places upon them in condemning one on circumstantial evidence, reaches the conclusion upon evidence properly before them that the accused is guilty, it is not for the reviewing court to supplant their findings by its own, unless it is able to point to weaknesses, omissions, or inconsistencies in the evidence which destroy its cogency. This, in the instant case, we are unable to do.

In addition to his attack on the sufficiency of the evidence because of contradictions and impeachment, he urges that the proof with reference to tracks does not exclude the theory that they were made by another, that the witness who saw a man near the place of the homicide did not identify appellant as the man he saw, and points out what he regards as similar element of weakness in some other parts of the testimony. The evidence upon these matters was, in our judgment, consistent with the guilt of appellant, and not inconsistent with his innocence. The law does not require that each fact proved standing alone, be of such weight as to establish guilt. Vernon's Texas Crim. Statutes, vol. 2, p. 595; Marshall v. State, 5 Tex. App. 373; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096. The facts must be measured in their relation to each other. It is the combined force of the consistent facts upon which the verdict rests. Hocker v. State, 34 Tex. Cr. R. 359, 30 S. W. 783, 53 Am. St. Rep. 716; Parish v. State, 209 S. W. 679.

In Porch's Case, 50 Tex. Cr. R. 337, 99 S. W. 102, a conviction for murder was sustained upon evidence quite similar to that in the case in hand. Appellant refers to Wilkie's Case, 203 S. W. 1091, as furnishing a precedent controlling in his favor the decision of this case. We do not think so. It is illustrative of the view hereinbefore expressed— that, in testing the sufficiency of the evidence, the facts of the particular case are controlling. The principle there applied was a well-established one, namely, that in a case of circumstantial evidence, where the testimony disclosed that there was available to the state pertinent and important evidence which was not introduced, the reasonable presumptions that arise therefrom are considered in favor of the accused. The court, in deciding that case, regarded certain evidence, which was available to the state, and which was not introduced, as affording a presumption so inconsistent with some of the main facts relied upon by the state that the cogency of the evidence upon which the conviction rested was destroyed. So far as the principle obtains in the instant case, it arises from the suggestion by the evidence that there were others who had motive and opportunity to commit the offense, and the existence of the hypothesis that it was committed by them, and not by the appellant. In this case the theory was met by evidence which was regarded by the jury as eliminating the theory that the homicide was committed by any other than the appellant.

The court was not in error in refusing to sustain appellant's motion to require the district attorney to deliver certain alleged written statements in his possession, consisting of the testimony of some of the witnesses in the case delivered before the grand jury and therein reduced to writing and signed by them. These were not public documents as were those involved in Jenkins v. State, 45 Tex. Cr. R. 176, 75 S. W. 312. See Goode v. State, 57 Tex. Cr. R. 228, 123 S. W. 597. The statute limits the use to be made of evidence given before the grand jury. Vernon's Code of Crim. Procedure, art. 416; Christian v. State, 40 Tex. Cr. R. 671, 51 S. W. 903. On the subject Mr. Wharton, in his work on Criminal Evidence, § 564a, says:

"The general rule is that an accused in a criminal case has...