Wells v. State, 24252.

• Decision Date: 23 February 1949
• Docket Number: No. 24252.,24252.
• Citation: 220 S.W.2d 148
• Parties: WELLS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 148

220 S.W.2d 148

WELLS v. STATE.

No. 24252.

Court of Criminal Appeals of Texas.

February 23, 1949.

Rehearing Denied May 11, 1949.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Lawrence A. Wells was convicted of murder with malice, and he appeals.

Affirmed.

McLean & McLean and W. P. McLean all of Fort Worth, for appellant.

Alfred M. Clyde, Former Dist. Atty., Stewart W. Hellman, Criminal Dist. Atty., Leo Brewster, Special Prosecutor, Martin, Moore & Brewster and Beale Dean, all of Fort Worth, and Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for murder with malice, with a sentence of thirty-five years in the penitentiary.

Appellant is alleged to have shot and killed J. L. Montgomery on the 11th day of August, 1947. The facts show that appellant was a tenant in a business building belonging to deceased; that he was engaged in running a domino hall, while deceased had a package store and probably other businesses in the same block but on a different street. They had had differences on more than one occasion because deceased would raise the rent above what appellant thought he should. He seemed to have the idea that he was being imposed upon, though it was admitted that other tenants in the same building had the same raise in rents. Appellant complained about the attitude of the deceased and the manner in which he approached appellant about raising the rent and arguments between them had taken place in the presence of others. Threats made by deceased had been communicated to appellant. Following some discussion of the matter in the afternoon or early evening, appellant went to his home, procured a shotgun, returned and parked his car near the front of the package store. Deceased was either at the front or came as appellant was getting out of his car. According to appellant's theory the deceased made a play for his gun and he shot in self-defense. The issue on this subject was presented to the jury.

The first contention made is that the indictment should have been quashed because it did not contain the correct name of deceased. The evidence shows that his name was Robert Clyde Montgomery, but it also shows that for convenience in getting his mail he had adopted the initials J. L. to distinguish him from his father. He had gone by that name much of the time and signed a will by the name J. L. Montgomery, under the undisputed evidence in the case. The action of the trial court was proper.

A number of special charges were presented after the court's first draft of the main charge and complaint is made because of his refusal to give them. We have considered all such charges and, in view of the amended charge which was given to the jury, we find no error. There are also numerous objections to the court's charge as given. These have been analyzed at great length. No serious question of law is raised and we see no point in discussing them.

Appellant's Bill of Exception No. 6 complains of the admission in evidence of the testimony of James E. Wood as to his conversation with appellant immediately following the shooting, the grounds being that he was under arrest. Wood was a policeman. While driving along the streets near the scene of the tragedy, he saw a large crowd of people going in that direction and stopped to investigate. The testimony includes statements made by appellant but it seems perfectly clear that they were made before the officer had arrested him. The bill fails to show any act of retention by the officer until after he had made all of the statements introduced in evidence. To the contrary, it is stated by the officer that he then took charge of him — after the statements. An examination of the statement of facts, for the purpose of appraising the bill, verifies this.

Bill of Exception No. 12 complains of the refusal of the court to discharge the jury and declare a mistrial because of an alleged separation from each other by members of the jury. Under the court's qualification he found that no such separation took place. This Court is bound by the qualification under the facts.

Bill of Exception No. 13 complains of the ruling of the court in permitting J. F. Greathouse, an attorney, to testify in the case after having been in the court room during the progress of the trial. The evidence given by this witness related the facts of his drawing the will which had been introduced in evidence, for the proper purpose of showing that the deceased signed his name as J. L. Montgomery. The attorney testified to this. It is a matter without dispute in the record. The trial court, in his discretion, permitted this additional evidence to be introduced. We think he was within his rights in doing so.

Bills of Exceptions Numbers 21, 22, 23, 24, and 25 complain of the argument of Mr. Leo Brewster, the special prosecutor, and of Mr. Al Clyde. The statements made by these prosecutors were practically to the same effect. Objection was taken at each time and the objection was sustained by the trial court who instructed the jury not to consider them. The question then is whether or not the statements are so inflammatory as to require a reversal of the case. The defense, for some reason not apparent to this Court, called a doctor as a witness in behalf of the defendant who had been his physician through a great many years. He told of his physical condition and pronounced him mentally sound. He described a long series of treatments of appellant for syphilis. He had given him the Wassermann test on several occasions. At times it had showed positive and at other times showed negative. As the doctor described it, the disease had brought about a serious condition of the liver and also a spinal column trouble which the doctor said was unfortunately progressive and would never be better. Appellant testified in his own behalf and complained of such trouble even up to the time of the trial and mentioned his syphilis. The defense also introduced much evidence showing the gambling connections and operations of deceased through the years, all of which was calculated to convey to the jury the idea that he was a character not to be admired.

In their argument now under discussion the attorneys referred to the terms of the will which, as they saw it, would show that deceased was a man who was charitable and not altogether bad. Mr. Brewster, who made the opening argument, asked what would be in the will of appellant and if he would consign his syphilitic body to the state. Such argument was improper. It was uncanny in view of the effort to secure a death penalty as the jury's verdict. It demonstrated a lack of caution on the part of the attorneys, both of whom have had long experience in prosecutions. Following this, disregarding the court's ruling, in the closing argument for the prosecution, Mr. Clyde twice referred to the syphilitic body of appellant. Such argument was dangerous...