Wharton v. State

• Decision Date: 18 March 1931
• Docket Number: No. 13847.,13847.
• Citation: 38 S.W.2d 72
• Parties: WHARTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 72

38 S.W.2d 72

WHARTON v. STATE.

No. 13847.

Court of Criminal Appeals of Texas.

March 18, 1931.

Rehearing Denied April 22, 1931.

Commissioners' Decision.

Appeal from District Court, Robertson County; W. C. Davis, Judge.

W. L. Wharton was convicted of murder, and he appeals.

Affirmed.

Bush & Parten, of Franklin, for appellant.

Frank A. Woods, Sp. Pros. and T. L. Tyson, Co. Atty., both of Franklin, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

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

Appellant killed T. D. Boatright by shooting him with a pistol. The homicide occurred near the store of Felix Martinez. Some time prior to the homicide, appellant and deceased had had a quarrel, the details of which we do not set out. The testimony of the state was, in substance, as follows: Appellant and deceased were standing in front of Martinez' place of business engaged in conversation. Appellant had a pistol in his shirt bosom. Upon meeting deceased, appellant attempted to renew the quarrel with him. Deceased told appellant that he did not feel like talking to him about the matter. Appellant cursed deceased, and deceased struck him with his fist. Appellant drew his pistol from his shirt bosom, and deceased turned and ran toward Martinez' store. Appellant fired one shot at deceased, and pursued him into the store. Deceased fell to the floor, and appellant fired several shots at him, one of the shots taking effect.

Appellant testified that deceased cursed him and struck him in the face with his fist. He testified further that deceased made a motion with his right hand as if to draw a pistol, and that, believing deceased was going to kill him, he drew his pistol and shot deceased. He denied that he cursed deceased or did anything to provoke the attack deceased made upon him. He said that his mind was agitated at the time he fired the fatal shot.

Bills of exception Nos. 1, 2, 3, and 10 relate to the action of the court in permitting medical experts to describe the effects of the wound inflicted on deceased. It appears that deceased lingered for several weeks, and that from the time he received the wound until his death he was completely paralyzed as a direct and immediate result of the wound. The physicians testified that the paralysis developed a bed sore, and, further, that deceased was unable to discharge his urine voluntarily and naturally. The bills recite that appellant objected to the testimony touching the description of the wound and the condition of deceased during the time he was confined in the hospital, on the ground that it was immaterial, irrelevant, prejudicial, inflammatory, and shed no light upon any issue of the case, but merely emphasized deceased's suffering. We are unable to determine from the bills of exception whether the fact that deceased was paralyzed and developed a bed sore shed any light on the issues to be determined by the jury. It is merely recited as a ground of objection that the testimony was irrelevant, immaterial, and shed no light on any issue in the case. The bills fail to set out anything that would enable us to determine that the objections were well taken. The mere statement of a ground of objection is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It is the general rule that a physician who has examined and described the wound may express an opinion as to the probable cause, nature, and effect of the wound, and the consequences thereof, without violating the rules of evidence. Windham v. State, 93 Tex. Cr. R. 477, 248 S. W. 51, and authorities cited.

As disclosed by bill of exception No. 7, when appellant followed deceased into the store of Felix Martinez and emptied his pistol at him, Martinez said to appellant: "Please don't shoot any more. The man is down." Appellant objected to proof of this statement on the ground that it was made by a bystander, and inadmissible for any purpose. It is the rule that if a statement of a third person is part of the transaction, and illustrates the feelings, motives, and acts of the principal actors, proof of same is admissible as part of the res gestæ. Wade v. State, 98 Tex. Cr. R. 27, 263 S. W. 589. We think the statement res gestæ, and admissible under the rule stated.

Many bills of exception relate to questions propounded by the county attorney on cross-examination of certain named witnesses who had testified for appellant that his general reputation as being peaceable and law-abiding was good. It is the rule that a witness to the good character of the accused may be asked upon cross-examination whether he had heard rumors of particular and specific charges or acts of accused inconsistent with the character he was called to prove, not to establish the truth of such charges, but to test his credibility and enable the jury to weigh his evidence. Townsley v. State, 103 Tex. Cr. R. 508, 281 S. W. 1054. Appellant objected to these questions as follows: "Defendant then and there timely objected to these questions being asked and such matter being gone into and made his objections to the court before same were asked and inquired about, for the reasons such testimony was wholly inadmissible, and not confined to the general reputation of the defendant, was highly prejudicial and inflammatory to defendant's rights, and because same were not confined to such acts and misconduct on the part of the defendant for which legal charges, if any, might have been filed against the defendant, or which might have involved moral turpitude, and because such inquiries were about imaginary and separate transactions from the offense for which defendant was on trial, and such questions conveyed to the minds of the jury the idea that such alleged assaults were true and the county attorney had heard of same." In most instances the character witnesses were asked if they had heard rumors of appellant having made an assault upon a named person at a particular time and place. It is true that it was not shown that the transactions inquired about had resulted in charges having been filed. Whether or not charges had been filed was immaterial. We state this in view of a recital in the bills of exception to the effect that the appellant had not been legally charged with an offense growing out of the transactions inquired about. There is nothing in the bills of exception to support the objection that the charges were "imaginary."

Bill of exception No. 20 presents the following occurrence: Joe Foster, a witness for appellant, had testified that appellant's general reputation for being peaceable and lawabiding was good. The county attorney asked the witness on cross-examination the following question: "How many people did you ever hear of Mr. Lee Wharton (appellant) being implicated in killing prior to this homicide?" Appellant objected to the form of the question, and the county attorney withdrew it. Appellant contends that the withdrawal of the question failed to cure the error. There is nothing in the bill of exception to show that the question was not asked in good faith. It may have been too general in failing to direct the attention of the witness to rumors of particular and specific charges. If the witness had heard a rumor to the effect that appellant had killed another person, it was proper for the state to elicit such fact from him. Townsley v. State, supra. Bills of exception Nos. 14 and 22 present a question similar to that found in the foregoing bill.

One of the bills of exception shows that the trial court permitted a witness for the state to testify that about 35 or 45 minutes after the fatal difficulty he placed appellant under arrest and took him to his home; that in the presence of the witness appellant stated to his wife, "Now mama I have done killed him and I don't want to worry you about it because I have got plenty of friends." The bill discloses that the appellant was nervous and excited. Appellant objected to proof of the statement on the ground that he was under arrest and that the circumstances showed it was not res gestæ. We deem it unnecessary to decide whether the statement was admissible as res gestæ. If not admissible as such, we are unable to see how it harmed appellant. The fact that appellant shot deceased was uncontroverted. Moreover, he introduced his wife...