Welk v. State

• Decision Date: 25 June 1924
• Docket Number: (No. 8425.)
• Citation: 265 S.W. 914
• Parties: WELK v. STATE.
• Court: Texas Court of Criminal Appeals

265 S.W. 914

WELK v. STATE.

(No. 8425.)

Court of Criminal Appeals of Texas.

June 25, 1924.

Rehearing Denied November 12, 1924.

Appeal from Criminal District Court, No. 2, Dallas County; C. A. Pippen, Judge.

Sidney Welk was convicted of murder, and appeals. Affirmed.

See, also, 96 Tex. Cr. R. 373, 257 S. W. 1098.

J. Frank Wilson and Wm. Madden Hill, both of Dallas, for appellant.

Shelby S. Cox, Crim. Dist. Atty., of Dallas, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

From conviction in criminal district court No. 2 of Dallas county for murder, with punishment fixed, at death, this appeal is taken.

Mr. Champion, assistant jailer in the Dallas county jail, was shot in the back and killed on the sixth floor of said jail on September 26, 1923. The killing grew out of an attempted jail delivery participated in by appellant and one Gaines; the latter being killed by officers who came presently to the scene, and who testified in detail to their battle with Gaines and appellant upon their arrival. Two pistols had been smuggled into the jail, one an automatic .32, and the other a .38 special revolver. The .38 was found by the body of Gaines, and the automatic by appellant who was wounded in said battle. Deceased told said officers that he was going to die; that Pete Welk (appellant) shot him in the back. Inmates of the jail described the attack on Mr. Champion by Gaines and appellant, and affirmed that, because apparently of the jailer's refusal to deliver to them a key which was necessary to effect their escape, Welk shot the officer with the automatic pistol as the latter threw the key out of a window. Death resulted the same night. Appellant did not testify herein, but introduced one Hadley as his only witness, who stated that he was an inmate of the jail and cell mate with appellant. This witness testified in effect that Gaines shot Mr. Champion, and his evidence tended to show that appellant had taken no part in the matter until after Mr. Champion was shot. Upon predicates properly laid, this witness was impeached by proof of statements at variance with his testimony. Other matters of testimony may be presented in our discussion of the legal questions raised.

Appellant sought a change of venue, which application was controverted by the state in an attack upon the means of knowledge of his two compurgators. The learned trial judge heard evidence. Most of the witnesses favorable to appellant lived in one community in Dallas county, a rural community in the northeast part of said county, and most, if not all, of them avowed their lack of knowledge of the attitude of prospective jurors in other parts of the county. Several of appellant's witnesses upon this point averred their belief that he could obtain a fair trial in Dallas county. It was in testimony that in said county there were about 75,000 possible jurors, and all the witnesses for the state testified that a fair and impartial trial could be had therein. The books are full of decisions on the subject, and we do not deem it necessary to discuss them here. The burden of showing that the venue should be changed is placed by law upon the accused, and the rule is well settled that, unless it is clear that the judicial discretion of the trial court has been abused, a reversal will not be ordered. The authorities seem in accord, and need no citation.

Appellant asked for a continuance to obtain 3 witnesses. His bill of exceptions, complaining of the refusal of his application, is qualified by the statement that all 3 of said witnesses were present at the trial, and were tendered to appellant. Another application was made for continuance during the trial, apparently on the ground of surprise at the testimony of a state witness, it being asserted that the witness had made a statement to the attorney of appellant, variant from his testimony. Neither the application made during the trial, nor the bill of exceptions to its refusal, shows how appellant could have been advantaged by a postponement or continuance of the case. The witness in question admitted that he did wrongly inform appellant's counsel, but gave as his reason that he was at the time in the same part of the jail as the appellant, and that he was afraid to tell appellant's counsel the truth. Nothing is averred as to the expectation of ability of appellant to obtain by a postponement any fact or facts contrary to those revealed by the testimony of said witness. Having admitted that he had falsified, no effort was further made to impeach said witness, and we perceive no error in overruling either application for continuance.

In the development of its case, the state showed that at the time of the commission of this offense appellant was confined in the county jail on a charge of murder, to which testimony objection was made on the ground that this was proof of an extraneous crime, was hearsay, and prejudicial to appellant. The evidence was admitted to show motive. It seems reasonable. One casually in jail would not likely kill his jailer in an effort to get out. One charged with a misdemeanor would hardly go to the lengths to effect escape as might one confined on a felony charge; and this would seem especially true if the felony be of the grave character of murder. It is held by this court that proof of extraneous crimes becomes admissible when same shows a motive. Hamblin v. State, 41 Tex. Cr. R. 140, 50 S. W. 1019, 51 S. W. 1111; Smith v. State, 44 Tex. Cr. R. 59, 68 S. W. 267; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013; Morrison v. State, 40 Tex. Cr. R. 473, 51 S. W. 358; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; Chandler v. State, 60 Tex. Cr. R. 329, 131 S. W. 598. The proof in the instant case on this point went no further than to show that appellant was held under a charge of murder. Mr. Branch cites many cases in his Annotated P. C. § 1880, upholding the admissibility of such proof when material to show motive.

In the charge of the learned trial court appears the following:

"Now, I instruct you that, if you consider said evidence that he was so confined upon the charge of murder for any purpose at all, you will only consider it for the purpose of aiding you, if it does aid you, in determining the motive or intent with which the defendant acted at the time the said Willis Champion was killed, if he was, and for no other purpose."

This was excepted to as being on the weight of the evidence — as being an instruction in effect that appellant being held on a charge of murder was the motive for the homeicide — and that same was a virtual instruction that appellant did kill deceased. We think analysis of the charge quoted reveals the lack of merit in these contentions. Other exceptions to the charge were based on its failure to submit the issue of coercion of appellant by Gaines. That no issue need be submitted unless raised by the testimony is the plain holding of this court in many cases. Appellant's testimony tending to raise this issue must be derived solely from that of his witness Hadley. After stating that he was being put back in jail by deceased at the time of the attack, and that Gaines with a pistol ordered deceased to "leave go that door," and that Gaines by his efforts kept the door open, and that deceased started around the cell, said witness, referring for the first time to appellant, said:

"Pete Welk was standing here by the sink, leaning on a table like this, with his arm up like that, and George turned around and says, `Come out of there, Pete,' and Pete walked out, and George turned again to Captain Champion, who was going down this corridor this way. I was standing back over here against the wall, and I turned my head just about a second like that, and the shot was fired. When Pete walked out, George said, `Get those trusties.' When Pete came out of the cells, Gaines was right along here, and Mr. Champion was right about here. When George said `Get those trusties,' Pete ran over here, and I seen him start in the hospital. I could not say what kind of a gun Gaines had when he shot Champion, but I know it wasn't no large gun like a .45 or anything like that. I ran around here and down this corridor, and squatted down, then I came out around here, and George came up with Champion like this, holding his collar and ramming him with his gun. I don't know where Pete Welk was at that time. Later Pete came from around here somewhere, I don't know where, but he came by me here, holding his gun like this, and says, `Get back around there.' I says, `Pete, you know me,' and he said, `I know you, but it is best for you to go back around there.' That is the last time I saw Pete until I saw him lying out here under the steps; that was after the officers had come in. George was in the hospital the last time I saw him; he was dead at that time."

As we understand this, it seems an effort on the part of appellant to show he took no part in the homicide, and not to show that he aided in same, but was forced so to do by Gaines. We find nothing in this testimony reasonably indicating coercion or duress on the part of Gaines, and think the charge not open to the exception. Article 44 of our Penal Code, on the subject under discussion, provides that, in order to avoid liability for acts done under duress, threats or actual violence toward the party claiming to be so...