Vickers v. State

• Decision Date: 10 May 1922
• Docket Number: (No. 6789.)
• Citation: 242 S.W. 1032
• Parties: VICKERS v. STATE.
• Court: Texas Court of Criminal Appeals

242 S.W. 1032

VICKERS v. STATE.

(No. 6789.)

Court of Criminal Appeals of Texas.

May 10, 1922.

Rehearing Denied June 21, 1922.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

Ernest Vickers was convicted of murder, and he appeals. Affirmed.

Callaway & Shead, of Fort Worth, for appellant.

Jesse M. Brown, Dist. Atty., and W. R. Parker and W. H. Tolbert, Asst. Dist. Attys., all of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Appellant was convicted for the murder of one J. B. Loper, his punishment being assessed at death.

J. B. Loper was killed on the night of October 20, 1920. He was special officer for the Frisco Railroad, and left the Frisco freight office about 8 or 9 o'clock, going towards the city of Fort Worth. A short time after he left shots were heard in what is known as the T. P. reservation, and Loper was found badly wounded. He was taken to the hospital, and made a dying statement to the effect that, as he was crossing the "reservation," a man came up to within 18 or 20 feet of him and told him to stick his hands up, and that he (Loper) reached for his own gun, and when he did this the man shot him twice. He described the man as being of slight build, dressed with a dark cap, dark coat, and light trousers.

Many months seem to have intervened before any definite information reached the officers as to the identity of the party committing the offense. Bennie Atkinson testified that at the time of the killing he was acquainted with appellant, but knew him under the name of "Blackie" Kelly, and did not know his name was Vickers; that appellant had supper with witness on the night of the killing at his mother's house; that after supper he and appellant drove around for a while in a car belonging to witness' mother; that appellant got out of the car about 8:30, and said he was "going out to make some money, but did not say how"; that appellant had a pistol with him at that time. He next saw appellant about 30 or 40 minutes later, when he again came to witness' house; he came running in and told witness he had killed a man on the T. P. reservation; said he had told him "to throw his hands up, and he failed to do it, and he shot him." He requested witness to get some oil for him to clean his pistol, which the witness did. He took two empty shells out of the gun. This witness said appellant had on a blue cap and blue serge suit, but slipped on a pair of khaki trousers over the blue ones before he left his house the first time. Witness explains that he had never told anything about the occurrence, because from what appellant told him he was afraid violence would be done him if he told what he knew.

The state offered in evidence appellant's confession, which, omitting immaterial parts, was as follows:

"That evening about 7 o'clock Bennie and I talked about making some money. I had my pistol, a 44-40 colt double action with me. He and I got in his car. I had my pistol loaded with .38-caliber. Winchester cartridges. Bennie and I drove on up town and then later we drove out South Main street, passed the T. & P. station, and crossed the tracks just north of the T. & P. roundhouse. I got out of the car and started out across the T. P. reservation, following the trail in a southwest direction. At the time I had on my coat, a brown checked cap, and light-colored pants. After I had gone a short ways up the trail, I saw a man coming down the trail meeting me. When I had come to within about 15 feet of him, I told him to `Stick 'em up,' but he did not stick 'em up, but looked as if he was reaching for his gun. I, of course, already had my gun on him, and I fired at him three times, and then ran back down the trail in the direction that I had come from. I heard his gun fire one time. I went back to where the railroad tracks cross South Main street just north of the T. & P. roundhouse, and caught a passenger coach that was being switched going east. I rode the passenger coach until it got to the viaduct on Boaz street, and I jumped off and went back to Bennie Atkinson's house. Bennie had driven on south when I got out of the car on South Main street, and was supposed to wait for me on Railroad avenue, but when I got back to his house after the shooting he was already there. I went on in and told him all about it there at that time."

Witness Lewis testified that he was driving in his car near the T. P. reservation, and heard the shots, and immediately after saw a man running across the road directly in front of his car; the man had on a blue cap, dark coat, and lighter colored trousers; that as he passed in front of his automobile and struck the railroad track he half turned toward the car, and witness had a clear view of his face, and that appellant resembled the man he saw. Appellant testified, denying the killing, and claimed that at the time it occurred he was in his room with one Clarence McCorley; that he had seen Bennie Atkinson that night, and that Bennie had his (appellant's) pistol; that the next morning Atkinson told him that he (Atkinson) had a "shooting scrape out there the night before," and pulled the pistol out from under the bathtub, and took some empty shells out of it, and gave him (appellant) the gun. We deem it unnecessary to make a further detailed statement of the facts. Some of them will be disclosed in the discussion of questions raised by bills of exception.

Continuance was applied for on account of the absence of Clarence McCorley. It was alleged that the witness would testify that he was in the city of Fort Worth the night of the killing, and spent the night with appellant, and was with him at a rooming house at the time deceased was killed upon the T. P. reservation. The action of the court in denying the continuance was one ground upon which motion for new trial was urged. The state controverted the motion, and attached an affidavit from the witness denying that he would have testified as alleged, but asserting that he was not in Fort Worth when the killing occurred, but was in the state of New York. The affidavit further states that appellant had requested the witness to swear that he was with appellant upon the night of the killing, but witness had declined to do so. No error was committed in refusing the continuance.

J. A. Gibbons, a venireman, answered that he had conscientious scruples with reference to inflicting the death penalty. The court asked him if the severity of the crime would affect his views, to which he replied there might be some cases in which he could do it; the court then asked, if a man killed another in cold blood, without any reason, would he inflict the death penalty, to which he answered, "I don't hardly think I could," whereupon he was excused. In view of the character of the instant case, it would have been manifestly unfair to the state to have retained the juror. The court ruled correctly in excusing him.

Veniremen Wetsett and Crawford were challenged for cause by appellant, and, upon the challenge being overruled, were challenged by him peremptorily. Venireman Evans was challenged for cause, which was overruled. It is not shown that he served on the jury. Objections were made to certain questions propounded by the state to venireman Moreland. The state challenged him peremptorily. It is not necessary to determine whether the court was in error in his rulings with reference to the last four named veniremen. If he was, appellant does not bring himself within the rule whereby it would avail him. It is not made to appear that he exhausted his peremptory challenges, or that any objectionable juror served upon the case. Sections 642, 543, Branch's Ann. P. C., pp. 278-280.

Over the objection of appellant (bill No. 7) the doctor was permitted to testify that he discussed the seriousness of his wound with Mr. Loper, and told him in all probability it was a fatal one. W. H. Tolbert testified to a dying declaration made by Loper. As a predicate therefor the witness said Loper told him he knew he was going to die, and requested witness to send for Loper's family; that Loper was conscious, talked in a perfectly rational manner, and was sane. The only objections presented by the bill to the witness' statement that Loper was conscious and sane in such a way as to be considered are as being a conclusion, and because he was not an expert. Before the state could offer the statement of deceased as a dying declaration, it was necessary to show it was made when the declarant was conscious of approaching death. To do this it was pertinent to show that the doctor had advised him as to the fatal character of his wound. Morgan v. State, 54 Tex. Cr. R. 542, 113 S. W. 934; Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 937, 137 Am. St. Rep. 930. That the information was imparted to the wounded man out of the presence of appellant does not render proof of it inadmissible. It would be a rare case, indeed, where it could be done in his presence. Neither is it required that a witness be an expert to testify to the consciousness or sanity of one making the statement. Any witness present at the time may testify to such matters, subject to cross-examination as to his means of knowledge. Lyles v. State, 48 Tex. Cr. R. 119, 86 S. W. 763.

In his dying declaration deceased stated that when the party who shot him got within a short distance of him he told him to stick his hands up, and deceased reached for his own gun, and when he did this the man shot him. Appellant's confession is practically to the same effect. When deceased's pistol was found the guard was mashed in against the trigger, and, among other wounds, a shot had gone through his right hand. This and the condition of his pistol indicated that one shot from the robber had struck the pistol of deceased. Witness McKinney testified that at the scene of the shooting he found the handles of a pistol. The wife of deceased identified his pistol, and testified that...