Wells v. State
| Decision Date | 09 March 1938 |
| Docket Number | No. 19497.,19497. |
| Parties | WELLS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.
Leroy Wells was convicted for murder, and he appeals.
Affirmed.
John Morison, of Fort Worth, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant was convicted of murder; his punishment was assessed at confinement in the penitentiary for a term of five years.
It appears from the record that the deceased and his two brothers-in-law, A. E. Hudson and J. W. Hudson, went from Cleburne to Fort Worth on the evening in question. When they reached the city limits of Fort Worth, they had car trouble and were forced to have some repairs made. While a mechanic was engaged in making the necessary repairs, they purchased a pint of whisky, most of which was consumed by the deceased and A. E. Hudson. After having their car repaired, they proceeded into the city and went to a beer tavern where some negroes were playing music and where deceased and A. E. Hudson drank some beer. The deceased purchased beer for the musicians. One of them asked the deceased for a bag of potato chips. The deceased handed him a $10 bill and told him to get the chips. The negro purchased them and returned the change. Appellant and his companion, Cameron, saw the negro hand the deceased the money and asked him to buy them a bottle of beer. The deceased declined to do so and an argument followed. The proprietor of the tavern closed his establishment about 1 A. M. in the morning. The deceased and his brothers-in-law left the establishment a few minutes before it closed. Appellant and Cameron followed and overtook them a short distance away. First they asked deceased if he wanted to fight; then appellant remarked: "I have them covered, now you do the rest." J. W. Hudson, upon hearing this remark, started across the street, looking for a telephone to call the police. After he had walked about half way across, he glanced back and saw Cameron, appellant's companion, strike the deceased, but deceased did not fall. Appellant was apparently in the same place and position as when J. W. Hudson started across the street to call the officers. When Hudson returned, he found deceased lying near the curb, unconscious, and with blood flowing from his nose and mouth when he breathed. He was carried to a hospital and died early that morning. Appellant and Cameron were arrested within about an hour after the occurrence. When arrested, appellant had a blackjack in his pocket. The doctor who treated the deceased testified that the injuries from which the deceased died could have been made by either a blackjack or by striking his head on the curb when he fell. J. W. Hudson seems to have been the only person who saw any of the difficulty which resulted in the death of the deceased. Appellant did not testify or offer any affirmative defense.
By bills of exceptions No. 1 and 2, appellant complains because the court declined to give his special requested instruction, or one of his own, on the law of circumstantial evidence. If that issue was raised by any testimony, then he was entitled to such an instruction, because it is incumbent on the trial court to charge the jury fully and affirmatively with reference to the law applicable to every issue raised by the evidence, whether such evidence be produced by the state or the defense, and whether it be strong or weak, unimpeached, or contradicted.
However, as we understand the record, the state's case did not depend alone upon circumstantial evidence. J. W. Hudson was an eyewitness of the assault. He saw Cameron strike the deceased. There was direct and positive testimony that appellant and Cameron were acting in concert. Moreover, appellant was in such juxtaposition to the immediate act of the homicide as to take the case out of the rule requiring a charge on circumstantial evidence. Hence, the failure of the court to so charge was not error. See Bass v. State, 59 Tex.Cr.R. 186, 127 S.W. 1020; Crews v. State, 34 Tex.Cr.R. 533, 31 S.W. 373; Dobbs v. State, 51 Tex.Cr.R. 629, 103 S.W. 918; Bennett v. State, 32 Tex. Cr.R. 216, 22 S.W. 684.
By bill of exception No. 3, appellant complains of the court's refusal to permit him to show that sometime prior to the time when appellant and Cameron came into the tavern, deceased had been engaged in argument with other customers. If there had been any contention that deceased started the trouble, was making or threatening to make an assault upon appellant, and that appellant and Cameron, or either of them, struck the deceased in self-defense, then there might be some merit in his contention. Such, however, is not the case.
By bill of exception No. 4, appellant complains of the action of the trial court in permitting the admission of his plea of guilty at a former trial of this cause. It appears that at the February term appellant was on trial for the same offense. In pursuance to an agreement with the district attorney, he pleaded guilty in open court. In return...
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