Tuck v. State

• Decision Date: 31 May 1950
• Docket Number: No. 24628,24628
• Citation: 155 Tex.Crim. 113,231 S.W.2d 436
• Parties: TUCK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 436

231 S.W.2d 436

155 Tex.Crim. 113

TUCK v. STATE.

No. 24628.

Court of Criminal Appeals of Texas.

May 31, 1950.

Rehearing Denied June 23, 1950.

J. E. Flowers, Baytown, Percy Foreman, Houston, for appellant.

A. C. Winborn, Crim. Dist. Atty., E. T. Branch, Asst. Crim. Dist. Atty., O'Brien Stevens, Asst. Crim. Dist. Atty., Spurgeon E. Bell, Special Prosecutor, all of Houston, George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

The allegation in the indictment upon which appellant was convicted was that appellant killed deceased by driving an automobile onto and across her body. The punishment assessed was twenty-five years in the penitentiary.

We are unable to perceive any material defect in the indictment, and appellant's motion to quash was properly overruled.

About 8:30 o'clock on the night of June 26, 1947, deceased (Mrs. Lester Gertrude Crowell), and her friend, Stella Probst, were seated at a table in a beer tavern drinking beer. Appellant entered the place and later joined the women at the table in the beer-drinking. The three parties left the tavern for a time and later returned. It was then about 11:30 o'clock at night. They stayed about fifteen minutes; then Stella Probst left them, appellant agreeing to carry deceased home. After Mrs. Probst left, appellant purchased six bottles of beer and he and deceased drove away.

Some time thereafter and before daylight on the morning of June 27, police officers found deceased lying in the street two or three feet from the curb, with her chest crushed and paralyzed from the waist down by a severe back injury. She told the officers that appellant had run over her with a car. She was removed to the hospital, where she died the next day.

By dying declarations and written statements of the deceased, it is shown that appellant, after he and deceased left the beer tavern, endeavored to get her to engage in an act of sexual intercourse with him. Her refusal angered appellant, and he pushed her from the automobile. As she lay in the street, he drove the automobile across her body and then backed the car over the body, after which he drove away, leaving deceased lying in the street.

There was no material variance between the state's testimony and that of the appellant regarding the facts up to the time appellant and deceased left the tavern together after buying the six bottles of beer.

It is appellant's testimony that he and deceased were intoxicated; that, at the request of the deceased, he let her out of the automobile a short distance from her home; that he then drove to his home, arriving there about 12:20 o'clock, a. m. He denied that he had any part in the infliction of the injuries to deceased and that he knew anything about the matter until he was awakened and notified thereof by the officers at his home.

It was the province of the jury to believe the statements and declarations of the deceased, and the facts are therefore deemed sufficient to support the conviction.

The state offered in evidence two written statements of the deceased.

The contents of one of these statements the appellant put in evidence by cross-examination of the witness to whom the statement was made. When the state subsequently offered the entire statement, no objection was urged thereto. It is apparent, therefore, that appellant, having placed in evidence the contents of the statement and not having objected to the introduction thereof before the jury, is not in position to complain of the testimony of the other witnesses testifying to the same facts as those contained in the written statement.

Among the witnesses testifying to the dying declarations of the deceased was the witness Oma Hill, with whom deceased lived. She appears to have been the last witness to whom deceased made a statement before her death a short time thereafter. It is only from the statement made to that witness by deceased that there is found a motive for the killing, which was to the effect that when she refused to engage in an act of sexual intercourse with appellant he became enraged and pushed her from the car and ran over her.

Appellant, by special requested charge and exception to the court's charge, complains because the trial court in his charge failed to instruct the jury as to the facts necessary to constitute a predicate for the receipt in evidence of a dying declaration and to require a finding by the jury as to the existence of such facts before considering the testimony concerning the declaration by the deceased.

The trial court was not under the burden of giving such a charge, because there was no fact issue for the jury to determine as a condition precedent to consideration of the dying declaration. The undisputed facts established the necessary predicate.

The state's case was not one of circumstantial evidence, and no necessity existed to instruct the jury upon circumstantial evidence.

There appears in the transcript twenty-two bills of exception, which may not be considered because they were not filed within the time required by law. The record shows that the time for filing bills of exception expired on July 18, 1949. The bills were filed July 19, 1949, one day too late.

There appears in the record an application by appellant, filed July 15, 1949, seeking to have the time for filing extended to July 20, 1949, but there is nothing in the record showing that the trial court acted upon the application or granted the request for extension of time.

Bills of exception not filed within the time and manner required by law, Art. 760, C.C.P., Vernon's Ann.C.C.P. art. 760, cannot be considered upon appeal. The enforcement of this statute may be harsh, as in the instant case, where the punishment inflicted is twenty-five years in the penitentiary, nevertheless, we have no right to disregard the mandatory provisions of the statute.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.

On Motion for Rehearing

WOODLEY, Judge.

By supplemental transcript it is shown that the time for filing bills of exception was further extended by order of the trial court to July 20, 1949. The bills of exception will therefore be considered.

Bill No. 1 complains of the overruling of appellant's third motion for continuance because of the absence of the witnesses A. J. Lemmert and Mrs. A. E. Tuck.

It was alleged in the motion that from newspaper accounts appellant had learned that the alleged homicide was supposed to have been committed at or about the hours of one or two o'clock A.M. in the early morning of June 27, 1947; that appellant admitted having been with and in the company of the deceased until shortly after midnight.

By the witness Lemmert, appellant expected to prove that at or about one o'clock on said morning the witness saw the deceased get into an automobile with a woman and two men, and drive away. That when seen by him deceased was at or near her home, and appeared to be in a highly intoxicated condition. That neither of the men was appellant.

The materiality of the testimony is apparent, because it supported appellant in his testimony that he had no connection with the death of the deceased and that she was alive and uninjured when he left her.

The witness Lemmert was not under process. Notwithstanding subpoenas had been issued, none had been served upon him. Upon the application for a subpoena for the witness made February 8, 1949, and six days before the case was called for trial and over nineteen months after the return of the indictment, his occupation was given as 'Seaman 1/C' and his residence as 'Bolan Hotel and Rooming House,' Baytown, Harris County. The subpoena upon that application was not served, the return of the officer showing that the witness could not be found in Harris County.

In the affidavit attached to the motion for new trial, Lemmert gave no information as to his occupation, address, place of residence, or where he might be found for the service of process upon him. Witness did say in the affidavit, 'I will keep you informed as to my address from time to time so that I will be available to testify if there is another trial of this case.' The affidavit was subscribed and sworn to before 'Mark M. Carter,' Notary Public, Harris County, Texas, on April 13, 1949, which was fifteen days before the motion for new trial was acted upon.

Appellant's leading counsel, testifying upon the hearing of the motion for new trial, denied knowing Lemmert and having ever talked with him. He further testified that so far as he had been informed, his associate counsel in the case had not talked with Lemmert. He accounted for his information relative to the witness Lemmert by saying that it was furnished him by Henderson, a paid investigator employed by appellant.

Henderson did not testify upon the hearing of the motion for new trial.

Mark M. Carter, the notary public who took Lemmert's affidavit, is a licensed attorney and former president of the Baytown Bar Association. He was not called as a witness upon the hearing of the motion for new trial.

Walsh, investigator for the district attorney's office, testified that he had checked the register of the Bolan Hotel, where it was alleged that Lemmert resided from January 1, 1947, to the time of the giving of his testimony, and that Lemmert was not registered there during that period of time. Extensive investigation in Baytown failed to disclose anyone who knew or had heard of Lemmert. Walsh, however, did not contact Carter, the Notary Public before whom Lemmert made the affidavit.

Only two persons appear to have seen the witness Lemmert. These were Henderson, the investigator for appellant, and Carter, the aforesaid notary public, neither of whom appear to have been interrogated relative to their knowledge of or acquaintance with Lemmert.

Upon the facts stated, the trial court reached the conclusion and found as a fact that no such person as A. J. Lemmert...