Walker v. State

• Decision Date: 05 April 1933
• Docket Number: No. 15875.,15875.
• Citation: 60 S.W.2d 455
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W.2d 455

WALKER v. STATE.

No. 15875.

Court of Criminal Appeals of Texas.

April 5, 1933.

Rehearing Denied May 31, 1933.

Commissioners' Decision.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Hugh Walker was convicted of murder, and he appeals.

Affirmed.

W. F. Schenck and Benjamin Kucera, both of Lubbock, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for 99 years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed F. V. Brown by shooting him with a gun.

It was the state's theory—given support in the testimony—that Jess Covington, Barber John Richardson, and appellant entered into a conspiracy to rob deceased.

G. A. Ross, who was under indictment for the murder of deceased, testified, in substance, as follows: After agreeing to let Jess Covington have his (the witness') rifle, he (the witness) went with appellant to the home of Bob McCaffree, where he secured his 30—30 rifle. He then got in a car with appellant, Jess Covington, and Barber John Richardson. Covington drove the car to the village of Woodrow, arriving there about 9 o'clock at night. Deceased's car was parked at the home of T. B. Hilton. Covington drove his car near the point where deceased's car was parked. He (the witness) remained in the car while appellant, Covington, and Richardson approached deceased's car. Richardson carried an automatic pistol, while appellant carried the witness' rifle. As the parties approached deceased's car, a dog barked, and shortly thereafter two or three shots were fired. Immediately after the shots were fired appellant, Covington, and Richardson rushed back to the automobile. Starting the car, the parties fled from the scene of the homicide, driving at a rapid rate of speed. After leaving the scene of the homicide, Richardson threw the rifle in a lake. On the way to the lake Richardson stated to the occupants of the car that he had thrown the automatic pistol away. He (the witness) did not enter into a conspiracy to commit the robbery and had nothing to do with the killing of deceased.

About two and one-half months after the homicide, officers found the rifle in the lake described by Ross. They also found the pistol at the place mentioned in Ross' testimony.

As to the immediate circumstances surrounding the homicide, the state introduced three witnesses, two of whom identified appellant as a participant in the transaction resulting in the death of deceased. From their testimony it is made to appear that deceased had driven to the home of Mr. Hilton and was sitting in his car talking to Mr. Hilton when Richardson appeared on the scene accompanied by appellant and Covington; that Richardson had a handkerchief over his face; that he commanded Mr. Hilton to go into the house; that using a pistol he held the parties up; that deceased grabbed at the pistol and it was fired; that immediately after the pistol was fired a shot was fired from the 30— 30 rifle and deceased fell, mortally wounded; that appellant fired the shot from the 30—30 rifle which killed deceased; that the parties then fled from the scene of the homicide.

Testifying in his own behalf, appellant declared that he was in Lubbock in a hotel at the time of the homicide. He declared that he had entered into no conspiracy to rob deceased and had nothing to do with his death. Further, he testified that some time after the homicide Ross admitted to him that he was the party who killed deceased, saying that he killed deceased as the result of a dispute arising over a division of the spoils of a robbery he and deceased had perpetrated. Appellant's theory of alibi was supported by the testimony of several witnesses.

Bill of exception No. 25 is concerned with the refusal of the court to change the venue. It was averred in the application that there existed in Lubbock county so great a prejudice against appellant that he could not obtain a fair and impartial trial. On the hearing of the application appellant introduced twelve witnesses and several daily newspapers published in the city of Lubbock. Nine of the witnesses introduced by appellant lived in the city of Lubbock. One witness lived three miles north of Lubbock and another five miles west of the city. On the question of prejudice, the state introduced eight witnesses, none of whom lived in the city of Lubbock. It appears that these witnesses came from various rural communities some distance removed from Lubbock. Several of appellant's witnesses testified that in their opinion appellant could not secure a fair, impartial trial in Lubbock county. They had heard the case discussed in the city of Lubbock where they lived. Practically all of the state's witnesses expressed the opinion that appellant could receive a fair and impartial trial in Lubbock county. They testified that they had heard very little discussion of the case. Lubbock county has a population approximating 45,000. About 20,000 people live in the city of Lubbock. Most of the rural population live on farms and in small communities. There are more than 4,000 qualified jurors in the county. The extent of the circulation of the Lubbock papers throughout the county was not shown, appellant contenting himself with showing by some of the witnesses that they had read these papers.

On September 15, 1932, three special venires appeared in court, one in Richardson's case, one in the case of Covington, and the other in appellant's case. At the time these venires appeared, Covington's case was called for trial. In excusing the veniremen in the cases of Richardson and appellant, the court instructed them that they should remain away from the courtroom during Covington's trial; that they must not read the newspapers; that they must not discuss the cases against appellant's codefendants with any person; that they were not to listen to any discussion of the cases. Again, on the 22d of September, 1932, when all the veniremen appeared in court, the court repeated his instructions, admonishing the jurors that they should not read any newspaper articles or talk about the case to any person. The veniremen appeared again on September 26th and were given the same instructions.

Most of the newspaper articles introduced by appellant were written after Covington's case was called for trial, and subsequent to the time that the special veniremen in the three cases appeared in court. In other words, the articles in question appeared in the papers subsequent to the time the court instructed the veniremen to refrain from reading newspapers. These newspaper articles embraced testimony adduced on the trials of Richardson and Covington, and reported in part the argument of counsel for the state. Other than the papers mentioned, appellant introduced in evidence daily papers of June 30, July 21, and July 22, carrying accounts of the killing of deceased, and referring to the fact that appellant, Richardson, and Covington were charged with murder in connection with the transaction. Some of the circumstances relating to the death of deceased were recited.

In overruling the application for a change of venue, the court made the following statement: "Gentlemen, I don't know how to pass on this thing finally until I hear some of these jurors talk. All we have here is just suppositions and guesses. I don't think anybody has a right to sit here and guess what the men of Lubbock would do. I couldn't do it. I am going to overrule the motion now, but, of course, if upon examination of these veniremen it is apparent that the minds of all the jurors are made up on this thing and have been influenced by these newspapers, I don't know that these veniremen have read a single one of these papers. I told them not to do it, and I don't know whether they did or not. I will overrule the motion now, and of course, if I see that such a condition exists here, why then later on I can sustain the motion. That is as far as I can go now until we see about these men on this special venire, see what they say about it." The record fails to show how many peremptory challenges appellant exhausted. It is silent as to whether any member of the special venire had read the newspaper articles introduced in evidence. It fails to show that any of the veniremen had ever expressed an opinion, or heard an opinion expressed, as to the guilt or innocence of appellant. It does not show that any discussion of the case was ever heard by any member of the venire. There is nothing to indicate that any venireman was challenged for cause, or that there was any prejudice whatever on the part of any member of the venire. There are no complaints in the record as to any juror selected, no contention being made that the court wrongfully overruled a challenge for cause. As far as the record reflects the matter, the jury had obeyed the court's instructions to refrain from reading the newspapers and discussing the case. Appellant's reliance for a change of venue was principally upon the fact that the evidence adduced on the trial of Covington and Richardson had been printed in the papers and read by the people of Lubbock county. There being nothing in the record warranting the conclusion that prior to the trial of Covington and Richardson the homicide had been discussed to the extent of creating prejudice against appellant or his case, and appellant having relied largely on what transpired subsequent to the time the veniremen appeared in court, it would appear to have been incumbent upon appellant, in view of the statement of the trial court when the application was overruled, to bring before this court some information relative to the attitude of the veniremen —the number entertaining opinions, the challenges exhausted by appellant in the selection of the jury, the extent to which the veniremen had heard the case discussed, if at all,...