Taylor v. State, 22330.

• Decision Date: 09 December 1942
• Docket Number: No. 22330.,22330.
• Citation: 166 S.W.2d 713
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W.2d 713

TAYLOR v. STATE.

No. 22330.

Court of Criminal Appeals of Texas.

December 9, 1942.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

George Lee Taylor was convicted of murder, and he appeals.

Affirmed.

Percy Foreman, of Houston, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a period of twenty years.

The evidence in this case presented two theories. That of the State was a willful and deliberate murder, while that of the appellant was an accidental discharge of the pistol by which the fatal injury was inflicted.

The record shows that appellant and the deceased had been married about one year at the time of the homicide; that she left him and went to her mother's home; that on the day of the killing he came to her mother's house in a car and sought to induce her to come back to him, which she declined to do; that he spent most of the day at his mother-in-law's home endeavoring to get his wife to go back and live with him. During the time that he was there he exhibited a pistol and pointed it at her but what he said could not be understood by the mother of the deceased, who was some little distance away. About 5 P.M., while he was sitting in his car and she was standing by the side of it with her head resting on the door, he shot her in the top of the head and then hurriedly drove away to his father's home, where he reported that his wife had been shot. The father picked up a "two by four" piece of timber and struck him several blows. Appellant then got in his car and went to Tyler from where he was brought back by his father and turned over to the officers.

Appellant's defense was that the pistol was accidentally discharged. This theory was sharply contested by the State. Several witnesses testified to the trouble between them as a result of his unfaithfulness to his wife with which she charged him, and when so charged, he threatened to kill her.

By bill of exception No. 1 appellant complains of the action of the trial court in permitting the District Attorney, in the development of the case, to ask the State's witnesses as to whether or not the deceased was armed or was in any way attacking or attempting to injure the defendant, to which he, through his counsel, objected on the ground that there was no contention on the part of the defendant that he acted in self-defense and that therefore self-defense was not an issue in the case; that the answers to the questions were prejudicial and inflammatory. The objections were overruled and appellant excepted. It must be borne in mind that appellant entered a plea of not guilty, thereby placing the burden of proof of the whole case upon the State. We know of no rule of procedure which authorizes the defendant in a criminal case to direct and prescribe the procedure to be pursued by the State in developing its case. It not only had a legal right to show the killing but also to show, if it could, that there was no excuse or justification for the same, and no circumstances which would mitigate it in order to show that the same was committed with malice aforethought. Hence we overrule his contention. See Burns v. State, 127 Tex.Cr.R. 356, 76 S.W.2d 516, and cases therein cited.

By bill of exception No. 2 appellant contends that the District Attorney, on cross-examination of the defendant, propounded to him the following questions: (1) If it were not a fact that he had been married before; (2) that he had infected his wife with syphilis; (3) that she had died from an operation made necessary by reason of having contracted such disease; and (4) if he were not then suffering from the venereal disease, to all of which he claims that he objected for the reason that the same were highly prejudicial and inflammatory and were calculated to prejudice the jury against him. This bill is qualified by the court, who states in his qualification thereof, that the first question was not asked in the form stated by appellant in his bill, but was in the following form: "Was that your first or second wife?" to which the defendant, without objection, stated that it was his second wife. The court certified that the second, third and fourth questions were not asked. However, the District Attorney did ask the appellant where his first wife was, to which he replied: "She is dead; that she died from an operation", to which no objection was interposed and no exception was taken to the qualification of the bill. Hence appellant is bound thereby. The bill, as thus qualified, fails to show error.

Appellant next complains of Paragraph 9 of the court's charge in which the jury were...