Tindall v. State

• Decision Date: 24 February 1943
• Docket Number: No. 22368.,22368.
• Citation: 172 S.W.2d 328
• Parties: TINDALL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 328

172 S.W.2d 328

TINDALL v. STATE.

No. 22368.

Court of Criminal Appeals of Texas.

February 24, 1943.

Rehearing Granted March 31, 1943.

Further Rehearing Denied June 25, 1943.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Louis Tindall was convicted of assault with intent to murder, and he appeals.

Affirmed.

Mays & Mays, Marvin Simpson, Jr., Chas. T. Groce, W. E. Myres, and Byron Matthews, all of Ft. Worth, and Hughes & Monroe, of Dallas, for appellant.

Marvin H. Brown, Jr., Crim. Dist. Atty., M. Hendricks Brown, Asst. Crim. Dist. Atty., and Will R. Parker, all of Fort Worth, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of an assault with intent to murder and his punishment was assessed at confinement in the state penitentiary for a term of two years.

Appellant challenges the sufficiency of the evidence to sustain his conviction.

The State's testimony, briefly stated, shows that the injured party was the mother-in-law of appellant and was living at his home on the night of the alleged assault and had been living at his home continuously for twelve years up to the time of the alleged assault. Appellant, who had been in the hospital where he was treated for an ulcerated stomach, returned to his home on the night in question. Upon arriving there he found the doors to his home locked, but through the glass of a door he saw his mother-in-law and her grandchildren sitting in a room. He asked her to open the door, but she was somewhat dilatory in complying with his request, whereupon he broke the glass out of the door, reached through the broken glass, opened the door and entered the house with two pistols. This produced considerable consternation and caused the wife of appellant and his daughters to make a hurried retreat by way of a back door while the mother-in-law, who had obtained a pistol, was attempting a rear-guard action to enable the wife of appellant and his daughter to make their escape. Appellant and his mother-in-law then proceeded from the rear of the house to the front porch and out into the yard where he fired several shots into the ground and told her to go back into the house; that when she was complying with his demand, he kicked her down near the door, commanded her to give him her pistol, which she did, and then struck her on the head with a pistol, inflicting a small scalp wound; that she then threw her hands and arms over her head and he struck her again, breaking both bones of one arm; that during the assault he stated that he was going to kill her. On cross-examination by appellant's counsel, she testified that she did not know whether he shot at her or not; that he could have shot her, as there was nothing to prevent him from killing her. He just said, "He was going to kill me by degrees"; that immediately after she had received the injuries he summoned a doctor to treat her.

Much testimony was introduced relative to appellant's relations with a blonde woman the accidental discharge of a pistol in his room while he was confined in the hospital, and his intent to defraud his wife, who had instituted a suit for a divorce and partition of property by withdrawing $1,800 from a bank.

Appellant testified in his own behalf and denied any intent to kill his mother-in-law. He also denied that he struck her with a pistol. He testified that she broke her arm and cut her scalp when she fell from the porch.

In view of the disposition we are making of this case, we do not deem it necessary at this time to express an opinion as to the sufficiency of the evidence to justify and sustain his conviction of an assault with intent to murder, further than to say that we entertain serious doubt thereof.

By bill of exception No. 1 appellant complains of the admission of the testimony given by Mrs. Callahan, the injured party, as follows: "I turned and started to run back into the house, and then he shot. Of course, I don't know whether he was shooting at me or not, but he shot, I thought, about four times. The bullets hit right around my feet. I went back there about ten days later and saw the holes in the ground where the bullets had gone down in the ground."

Appellant objected to this testimony on the ground that it calls for a conclusion of the witness. We are not in accord with his contention. The fact that appellant shot about four times was admissible as a part of the res gestae. The objection, as it relates to the balance of her testimony, went to the weight rather than to its inadmissibility.

Bills of exception Nos. 2, 3 and 7 reflect the following occurrences: While appellant was being cross-examined by the State, he was asked: "When this case was set for trial along in the early part of the month you didn't appear to answer to this charge, did you?"

To the question and answer sought to be elicited appellant objected on the ground that it was irrelevant, immaterial and prejudicial. The objection was overruled and he was required to answer the question. He testified: "I was in the hospital." Thereupon, the further question was propounded to him: "You mean you were sick?" to which he replied: "Yes, sir." The court qualified this bill, but we do not deem it necessary to here set out the qualification in detail. However, the substance of the qualification is that appellant did not appear when the case was originally set for trial on May 27, 1942; that appellant's attorneys did appear and advised the court that it was their understanding that he was in the hospital. The court then took a recess to enable the State and defendant's counsel to make an investigation as to his physical condition, and the next day two physicians appeared in court and stated that in their opinion appellant was not physically able to appear, whereupon the case was postponed until the latter part of June. In view of the qualification showing that the court had theretofore determined that appellant was not physically able to appear at that time and had postponed the case, therefore, the evidence failed to prove or disprove any issue in the case, unless it could be shown that appellant had perpetrated a fraud upon the court. The only purpose, as we see it, was to convey to the jury the idea that appellant evaded trial, knowing that he was guilty. However, this issue had been decided theretofore by the court when the case was postponed. We are of the opinion that the learned trial court fell into error in admitting the same.

Bills of exception Nos. 5 and 6, as qualified by the court, show that the State, on cross-examination of appellant's witness, Lee Rogers, was permitted to ask him the following question:

"Q. You stated to the jury that you had never had any business with this defendant. You remember when his wife sued him for divorce, right just about the time of this trouble with his mother-in-law, don't you? A. Yes.

"Q. You came to Ft. Worth with him and went with him out and woke the banker up to get $1800.00 out of the bank to keep his wife from catching it by tying it up and getting her part? A. I don't remember exactly what time it was when he went to the banker's house, but I'll say it was anywhere from eleven at night until one in the morning. The purpose of my visit with the defendant to the banker's house at that time of the night was to get $1800.00 out of the bank before his wife could serve process on the bank to keep him from getting it."

This testimony, in our opinion, was foreign to any issue in the case and manifestly irrelevant and highly prejudicial. We are frank to admit that we are at a loss to understand why or on what theory it was admitted.

The matter complained of in bill of exception No. 8 fails to reflect any reversible error because appellant, on cross-examination of Mrs. Callahan, first elicited from her the fact that a blonde-headed woman by the name of Opal Boyer was at the hospital and claimed to be appellant's wife. Appellant having first opened the subject, he cannot complain when the State, on cross-examination of him, explored the subject further.

Bill of exception No. 10 shows that Mrs. Callahan, while being cross-examined, made a lengthy reply to a simple question, which was not responsive thereto. However, the court sustained appellant's objection and instructed the jury to disregard the same. Her answer that appellant was engaged in running a policy game, was shown on his cross-examination when the State inquired of him if he was not then under an indictment charging him with operating a policy game, to which he replied in the affirmative.

The matters complained of in bills of exception Nos. 11 and 12 relate to the argument of State's counsel, but since they will most likely not arise again upon another trial, we pretermit a discussion thereof.

For the errors herein discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion for Rehearing.

GRAVES, Judge.

In our original opinion we decided that the trial court fell into error in admitting the testimony shown in bills Nos. 2, 3 and 7. That portion of the opinion has been attacked by the State as erroneous. It is shown that the factual portion of such bill is in question and answer form with no certificate of the trial court that same was necessary.

The bill shows that the trial court on May 27th called this case for trial. Prior to such time, the court states he had been informed several days previously that the appellant would not be present for trial. Upon the calling of such case appellant failed to appear, but the manager of Baylor Hospital at Dallas, being present in court, informed the court that on the previous night, March 26th at 11:30, appellant appeared at the hospital, and had...