Trollinger v. State, 24326.

• Decision Date: 27 April 1949
• Docket Number: No. 24326.,24326.
• Citation: 219 S.W.2d 1018
• Parties: TROLLINGER v. STATE.
• Court: Texas Court of Criminal Appeals

219 S.W.2d 1018

TROLLINGER v. STATE.

No. 24326.

Court of Criminal Appeals of Texas.

April 27, 1949.

Rehearing Denied May 18, 1949.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

A. L. Trollinger was convicted of murder, and he appeals.

Judgment reversed and cause remanded.

H. S. Beard and John B. McNamara, both of Waco, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder and given a sentence of two years in the penitentiary.

The facts show that on May 23, 1948, in the early morning hours, a dance was held at the S. P. J. S. T. hall at a place called Elk in said county; that appellant was a constable of that county and was present with his soldier son in the bar in such hall; that the hour of 12:00 o'clock mid-night had passed; that Francis Wetzel, his wife, Helen, J. B. Wetzel, a brother, Marvin Schlemmer, Henry Winkelman, who married a Wetzel, and others were at said bar; that Francis Wetzel, the deceased, desired to purchase some more beer, but on account of the late hour he was not sold any; that some loud talking and cursing were indulged in by the Wetzels and their friends. Appellant's son was in uniform and the deceased's wife, Helen, made some remarks relative to a recruiting sergeant armband on the soldier's arm. He removed the same and placed it in his pocket, and it was claimed that some cursing was then indulged in by the deceased and his companions. Eventually the appellant attempted to place J. B. Wetzel under arrest and to take him from the building. He was interfered with by the deceased, as well as others, who demanded to know by what authority he was making such arrest and where his badge was if he was such an officer. Finally the constable got these parties out of the house and then a difficulty ensued between the soldier son and Marvin Schlemmer. The officer then shot J. B. Wetzel and Marvin Schlemmer and also shot and killed Francis Wetzel, he claiming that these three men, as well as others, were ganging up on him and making an assault upon him. J. B. Wetzel and Marvin Schlemmer recovered, but Francis Wetzel died as a result of two shot wounds.

The appellant and his son then drove to the county jail at Waco and surrendered to the jailer there in about 30 or 45 minutes after the shooting. The only bill of exception in the record relates to what occurred at the jail when appellant appeared there and announced to the jailer that he desired to be admitted therein; that he was the man who had done the shooting at Elk. We quote from the bill the testimony of the jailer as follows:

"When Mr. Trollinger came to the door I let him in the jail. He told me he was the man that did the shooting.

"He didn't ask to leave the jail. I wouldn't have let him leave until I got hold of the District Attorney. I didn't consider him a prisoner from the moment he entered the jail because I didn't know the details of the shooting until I learned something about it. I wouldn't have allowed him to go out of that jail. He didn't ask to go at that time. Later on, after Mr. Maddin came down and got a statement from him, he says, `If you all are through with me I guess we had better go, it is getting late.' It was then about 4 o'clock, and I said, `What about that, Gene?' He says, `Well, he will have to make bond.' And he did make bond before he was allowed to leave. That was about 4 o'clock. From the time he entered the jail until he made bond, I would not have permitted him to leave until I knew the facts of the case.

"Mr. Trollinger got to the jail door around 12:30 or 12:45, between 12 and 1 o'clock. I don't know the exact time. Mr. Trollinger walked to the door."

(Be It Further Remembered that there was no testimony introduced during the entire trial showing or tending to show that the defendant at any time made a statement, admission or confession in writing after having been warned as is required by Article 727 of the Code of Criminal Procedure of the State of Texas.) At the conclusion of the testimony of said witness Bill Surratt upon voir dire as hereinbefore set out said witness was permitted by the Court over the objections of the defendant to testify as follows:

"`I said, "Well, did you kill any of them," (referring to the three fellows the defendant said he had shot) "or do you know?" He said, "Well, I don't know, but I hope all of the sons-of-bitches are dead."'"

This last phrase was objected to because of the fact that appellant was under arrest at such time, had received no warning of any kind, and same was not in writing as called for in Article 727, C. C. P.

The record shows further testimony of the jailer relative to such subject as follows: "Well, I had got a call about a shooting at Elk. I dispatched our car out there and it wasn't but a few minutes until Mr. Trollinger and the boy came past the window. I couldn't see the boy — see who he was — and I thought Mr. Trollinger had brought somebody in that had done the shooting out there. He came up to the door and by that time I had gotten to the door. He said, `Let me in, Bill.' I let him in and asked him something about the shooting and he said, `I am the man that done the shooting.' I said, `Well, did you kill any of them, or do you know?' He said, `Well, I don't know, but I hope all the sons-of-bitches are dead.' At that time it appeared to me he was drinking some."

We are also referred to the statement of the appellant himself given while he was on the witness stand in which he said: "I told Bill Surratt I had to shoot three boys. He asked me if any of them were dead. Well, the boy, my son, as we came on to town — he helped load those boys there — and he said, `Dad, that last boy you shot is already dead.' I told Bill, `One of them is dead and the other two sons-of-bitches may die.' I didn't say I hoped they did die; I said, `They may die.'"

It is insisted that the complained of statement is res gestae of the transaction and admissible as such, regardless of any arrest. We do not have sufficient facts to enable us to determine either the distance from the scene of the shooting, or the town of Elk, or the elapsed time in which the statement was made. We do know that Elk is not in the city of Waco, but seems to be some distance therefrom. The statement offered seems to have been elicited from appellant by means of questioning. While the presence of any one of such conditions may not deprive the statement of its spontaneity and its res gestae attributes, nevertheless, they should have some weight in determining its admissibility. We find ourselves impressed with its lack when offered as a part of the res gestae.

We next consider whether the testimony shows appellant to have been under arrest or in custody of...