Todd v. State

• Decision Date: 31 January 1923
• Docket Number: (No. 6886.)
• Citation: 248 S.W. 695
• Parties: TODD v. STATE.
• Court: Texas Court of Criminal Appeals

248 S.W. 695

TODD v. STATE.

(No. 6886.)

Court of Criminal Appeals of Texas.

January 31, 1923.

Rehearing Denied February 28, 1923.

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Wayne Todd was convicted of murder, and he appeals. Affirmed.

Hood & Shadle, of Weatherford, for appellant.

R. G. Storey, Asst. Atty. Gen., and Preston Martin, of Weatherford, for the State.

MORROW, P. J.

The appellant was indicted for the murder of James McNeal, and upon his conviction the jury assessed against him the penalty of death.

The state introduced in evidence the written confession of the appellant, in which he declared that he, in company with one Forrest Dawson and one McElhaney, in accord with a prearranged plan to commit robbery, got into an automobile driven by the deceased, James McNeal, with his consent, on the pretense that they wanted him to take them to a place on the road where they had a broken car, and that while in the automobile with McNeal, and while he was driving it, he (McNeal) was struck over the head by one or both of appellant's companions. Appellant, acting in concert with them, stopped the car, and the deceased was taken out and placed in a pasture near the road, where he was subsequently found and identified. Some $37 in money belonging to the deceased were taken from his pockets, and the appellant and his companions took possession of the car and drove it to Fort Worth, and afterwards hid it at a point not far distant from that city. In the confession the appellant described in detail his movements for several days antecedent to the homicide. He and Dawson had been together during the greater part of the time. He related in the confession places to which he had gone and acts that he had done and persons whom he had met, and such transactions as he had had with them. Among other things he related riding in an automobile with a man from Graham. On this subject, we quote the following from appellant's confession:

"* * * And he carried us on the road to Weatherford when he ran out of gasoline; the man gave me a dollar and I went to the store on Clear Fork and he was not there, and I caught a car back to where the man was, and I told the man that the storekeeper was not there, and I went on to Weatherford with this man; he was a phone man of some kind, but I don't remember his name; at Weatherford I stopped at the Quick Service Garage and there talked to Tom McGill, and he went back with the gasoline."

McGill was called as a witness for the state, and testified that the appellant came to him and said that a man some distance out on the road wanted three gallons of gasoline; that McGill took it to him, and the man paid him for it. That the man paid for it was objected to upon the claim that it carried with it an implication that appellant had stolen the dollar which the man gave him. It was competent for the state to corroborate by legitimate evidence the statement in the confession. We fail to gather from the confession the inference which appellant's objection suggests. However, inasmuch as the court withdrew from the consideration of the jury the statement by McGill that the man to whom he took the gasoline paid for it, we regard the bill as revealing no error.

Bill No. 2, as qualified by the trial judge, shows that immediately before the argument, he was requested by appellant's counsel to warn the crowd present against any demonstration; that this was done; that in making the request no mention was made of the relatives of the deceased. During the argument of one of the state's counsel, the widow of the deceased began weeping so that she might be heard over the courtroom; that the court directed the sheriff to admonish her that she must desist and that she must restrain herself or retire; that she did desist from audible weeping with the exception of an occasional sob, until recess time. At noon, the court called upon the relatives to prevent her from entering the courtroom if she could not control her feelings. This was done, and the widow made no further demonstration. As a general rule, matters of this kind are not regarded as a ground for a new trial unless it appears probable that through them the jury was prejudiced against the accused. In this case the demonstration was promptly suppressed by the trial court, and, considered in the light of the evidence, the court did not, in our judgment, abuse its discretion in refusing to grant a new trial. For similar instances, see 16 Corpus Juris, p. 1176, § 2700. In the notes under this section will be found illustrations in our own and other jurisdictions.

An exception attacks the charge on the issue of insanity on the ground that it is not affirmative, and submits that issue alone in the negative form. The charge given follows accurately that recommended by Judge Willson in his work on Texas Crim. Forms (4th Ed.) p. 519. This form has been approved by this court in many decisions which are there cited. We regard the complaint of it as not meritorious.

The body of the deceased was found some days after he had been missed, and, among other facts describing the surroundings, there was testimony that there were some red ants around his head. There was also testimony that "there was a hole in the ground, four or five inches deep, where his feet went, and where the left hand fell there was gravel all raked up along the arm." This testimony was restricted by the court in both a verbal and written charge to the question of the length of time intervening between the death of the deceased and the time he was found. From the appellant's confession, it appears that he and his companions, after striking the deceased, put him in the locality in which his body was found. It was therefore competent for the state to corroborate the confession by relevant evidence. Kugadt v. State, 38 Tex. Cr. R. 690, 44 S. W. 989; Branch's Ann. Penal Code, § 1049; 16 Corpus Juris, § 1514; Wharton's Crim. Ev. vol. 1, § 325, and volume 2, § 633. The complete description of the deceased, the locality in which he was found, the condition of his clothes, the condition of the ground where he was lying—in fact, all circumstances tending to show the cause of his death, the time of his death, and the place of his death—were relevant. The evidence in question, we think, was embraced within this rule. Upon appellant's objection to its receipt, the court stated that it would be limited to the issue of corroboration. The limitation is deemed unnecessary, but not material error.

The bill of exceptions complaining of the action of the court in permitting the jury to take with them in their retirement the written confession made by the appellant and introduced in evidence, we think, is without merit. Article 751 of Code Cr. Proc., in terms, authorizes the jury to take with them in their retirement "any papers used in evidence." The statute has been construed upon a number of occasions. See White's Ann. P. C. § 873; Vernon's Tex. Crim. Stat. vol. 2, p. 566. In Holder v. State, 81 Tex. Cr. R. 195, 194 S. W. 162, based upon precedents there cited, the statute was construed to embrace the written confession of the accused. We are aware of no precedent to the contrary. None has been cited, nor has there been any reason advanced showing the ruling as unsound. We feel constrained to adhere to it.

One of the private prosecutors stated in his argument that the father of the appellant had plenty of money with which to hire high-priced lawyers to defend him. This argument was objected to, and a request made to instruct the jury to disregard it. The failure of the court to respond to this request is made the basis of complaint. We are referred to the case of Sorrell v. State, 167 S. W. 356, in support of this view. However, we do not regard the case as authority for the proposition that the argument mentioned requires a reversal of the judgment. In Sorrell's Case, the appellant's counsel told the jury that they should not consider against the accused the fact that his father was rich. The state's counsel then replied with an inflammatory appeal to the jury, in substance, that the wealth of the appellant's father enabled him to surround himself with influential friends, and that "it has been said that money could beat any case, and that the jury should repel such accusation." This argument was condemned in the opinion. There were many other reasons given for a reversal of the judgment, however. The statement embraced in the argument in the present case is one that, in our judgment, should not have been made. It was not within the scope of legitimate argument; neither was it of a character so material as, under the circumstances of the case, is to be calculated to injuriously affect the result. To cause a reversal, the argument must not only be improper, but of a material character, and calculated, under the circumstances of that particular case, to injure the accused on trial. See Willson's Crim. Proc. § 2321; Hardy v. State, 31 Tex. Cr. R. 292, 20 S. W. 561; Vernon's Tex. Crim. Stat. vol. 2, p. 415; 16 Corpus Juris, p. 909, § 2258; Moore v. State, 53 Tex. Cr. R. 561, 110 S. W. 911; Howard v. State, 53 Tex. Cr. R. 385, 111 S. W. 1038.

In his motion for new trial, the appellant charged that the jury, in its retirement, had received new material, and prejudicial evidence against him and charged various acts of alleged misconduct. Immediately after retirement the twelve jurymen expressed the conclusion that the appellant was guilty of murder. Ten of them declared themselves in favor of the death penalty. The two jurors who did not at that time do so were Hutcheson and Young.

On the trial there was an issue of insanity. On the hearing of the motion there was evidence that the juror Smith said that he knew the appellant; that he knew right from wrong, and that he was "as mean as the devil." Smith, on the hearing of the motion, testified and denied making this statement.

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