Whitaker v. State

• Decision Date: 17 March 1954
• Docket Number: No. 26863,26863
• Parties: WHITAKER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 172

268 S.W.2d 172

160 Tex.Crim. 271

WHITAKER v. STATE.

No. 26863.

Court of Criminal Appeals of Texas.

March 17, 1954.

Rehearing Denied May 12, 1954.

Burton S. Burks, Burk W. McNeil, Clifford W. Brown, Lubbock, for appellant.

Travis D. Shelton, Dist. Atty., Forrest Bowers, Asst. Dist. Atty., Lubbock, Wesley Dice, State's Atty., Austin, for the State.

GRAVES, Presiding Judge.

The conviction is for murder with malice; the punishment assessed is death.

Much of the statement of the case is taken from the appellant's own testimony herein. He was 20 years old at the time the offense was committed, and was 21 years of age at the time of the trial. He was a member of the Air Force, and on January 8, 1953, was stationed at the Reese Air Force Base near Lubbock, Texas. He was reared in Wethersfield, Connecticut. Upon entering the Army he was first assigned to the Sampson Air Force Base in Geneva, New York, and then transferred to the air base near Lubbock, Texas, where he became acquainted with Joyce Fern White. He met her at Lawson's Roller Skating Rink in Lubbock at different times, and finally attended her at her home. He assisted her many times in her school studies and especially with her Algebra. He became well acquainted with the members of her family. Her mother, Mrs. Lena B. White, a widow, was engaged at the time in supervising a nursery where small children would be left by their parents for short periods of time. She had previously operated a boarding and rooming house at such place. Mrs. White was the mother of eight children, and Joyce Fern, and the youngest child, a boy named Perry, resided with her in this home in Lubbock, Texas. The friendship between Joyce Fern and the appellant continued for some period of time and eventually they became very fond of each other. However, prior to meeting the deceased in August, 1952, appellant had become infatuated with a girl named Ulla Lindeborg, who lived in Sweden. While she was in the United States he was very attentive to her and gave her a ring. After she returned to Sweden, he heard from her every two weeks or so until he came to the Reese Air Force Base near Lubbock. After he came to Lubbock, he purchased a diamond ring in a jewelry store there and sent it to Ulla at her address in Sweden. However, after he had been at the Reese Air Force Base for a period of time, he became very attentive to Joyce Fern. They had some conversations at different times about the appellant's feelings toward Ulla, the Swedish girl. Since appellant was the only young man who had shown such attention to Joyce Fern, their relationship soon turned into a sort of romance. About this time his relationship with Ulla began to cool, and eventually their romance was terminated. Joyce Fern and the appellant were together almost every school night during the week and usually every Saturday night. Finally she permitted him to go into 'petting operations' with her, and he claimed to have had sexual relations with her just a few weeks before her death.

On the 6th day of January, 1953, appellant was informed that he was about to be transferred to San Antonio as a flying cadet. He had previously made application for cadet training and had passed all his examinations and cleared all of his 'physicals.' He claimed to be close to a nervous breakdown. On the 7th of January, he packed all his clothes that he would not use at San Antonio, and purchased a cotton cord about ten feet in length from a merchant in town with which he expected to tie up boxes in which his clothes were stored and leave them at Mrs. Gardner's house on a certain street in Lubbock. He was supposed to leave on January 8th, so he made arrangements with a soldier friend to borrow his car. He took these boxes to the lady's house and then went by to say good-bye to Joyce Fern. He drove to her house about a block away from where she worked and saw her walking along the side of the road with a package under her arm. He stopped and she said that she had just come back from the store. She got into the car with him, and they got into a lengthy argument about their marriage. The deceased wanted to be married, but he told her they could not be married because it was against the rules of the Army. They quit their argument and he thought it was settled, so they started away together in the car. She had failed to tell her mother where they were going. About dark, he disposed of these boxes in the car which he had failed to tie up with the cord. He and the deceased drove out on a certain avenue and then back to her house, where they worked on her Algebra. Her mother retired about 8:30 o'clock, and Joyce Fern started her argument again about wanting to go to San Antonio with him. They had quite an argument relative to their marriage at that time. Just as he was ready to leave around 9:00 o'clock, it is claimed that she put up a new argument and told him at that time that she was pregnant. Such statement seems to have upset him to a great extent. He became convinced of the fact of her pregnancy and finally agreed to take her to Clovis, New Mexico, immediately and marry her. He claims that this news caused him to have a short black-out which seems to have cleared away and left him dumbfounded. They came to the conclusion that the best thing to do was to get married; that they would drive to Clovis, New Mexico, to be married and he would then go to San Antonio. They decided not to tell the deceased's mother because she might not have been pleased with the idea of their running away, but he agreed to meet her around in back of the house because he did not care to go out in front and have her mother see her get in the car. She got into the car from there and they drove away. They went for quite a distance out in the country and argued some, but then stopped to 'do a little loving and so forth.' According to his testimony, they took off their clothes and had an act of intercourse in the car. During such time the deceased questioned him relative to his love for Ulla and his love for her as to whether or not the same was greater than his love for the deceased. Finally the deceased made the statement, as claimed by him in his testimony, that she was not pregnant; that she just told him that 'to prove to you that you love me more than you love that dumb Swede.' She slapped him a couple of times and that this was all he remembered for a period of time. The next thing he knew he was in the front seat with a flashlight looking down and she was lying there on the floor with her face discolored. He reached down and felt of her pulse, but there was none. He then realized that she was dead, and knowing that dead people should be buried, he thought he would try to find a place to bury her. He then got up and dressed and started out in the car through a back road. This is deemed to be a sufficient resume of his testimony.

On the following day when the deceased did not appear at her home a search was started for her. He appeared at her home and assisted in every way that he could in endeavoring to find out where she had gone. He made the suggestion to her mother, sisters and brothers that she had doubtless gone to San Antonio. This idea was also suggested by him to the officers and others who were looking for the girl, and eventually he went to San Antonio to the air field to which he was assigned, leaving her whereabouts undiscovered. However, the hunt for the girl's body continued and suspicion rested upon him since he was the last person seen with her. Eventually he was questioned by rangers and peace officers and usually gave the same story until at last he was taken into custody by such officers. He then requested the presence of a minister, and the officers procured a Lutheran minister who came and talked to appellant privately. Soon thereafter he told the officers that if they would take him back to Lubbock, Texas, he would locate the spot where he had buried the body of the girl.

He was taken to Lubbock, and after some effort with his own hands, he took a shovel and dug six different holes, five of which produced the clothing that was identified as having been worn by Joyce Fern, her shoes and other paraphernalia, and finally, along a pipe line that had just been laid there, he dug down about four to six feet and there they found the body of Joyce Fern.

There was no contention of any kind that appellant was mistreated by anyone. In fact, his own testimony shows that he was treated at all times with consideration. There were no threats, no importunities, just intermittent questioning, and finally he led them to the spot where this little 18-year-old girl had been buried some 20 days before.

A Justice of the Peace was called while this body was still in the grave. He held an inquest over the same and ordered an autopsy thereof, but the autopsy, although offered in evidence, was excluded by the court in an excess of caution. However, the testimony of Dr. Marie Shaw, who viewed the body, evidenced the fact that the deceased had met a violent death.

Dr. Shaw testified that she viewed the body of Joyce Fern White on the 28th day of January, 1953, at a funeral home in Lubbock about 10:30 o'clock in the morning. From the external appearance of the body, a gash was found in the left breast thereof about seven and one-half inches in length. This gash was filled with dirt and had evidently been made after death, there being no bleeding in the tissues around the wound. She further testified relative to the appearance of the body as follows:

'A. At the bottom of the neck right above the collarbone, there was a line of demarcation, above which the neck and head were swollen and blue in color, and in the eyelids there was a considerable amount of hemorrhage present with a puffy, swollen appearance to the eyelids and tissues around the eyes. The lips were swollen and protruding and bluish-black, the tongue was blue and swollen and protruding...