White v. State

• Decision Date: 17 April 1935
• Docket Number: No. 16963.,16963.
• Citation: 84 S.W.2d 465
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 465

84 S.W.2d 465

WHITE v. STATE.

No. 16963.

Court of Criminal Appeals of Texas.

April 17, 1935.

Rehearing Denied June 19, 1935.

Appeal from District Court, Coryell County; R. B. Cross, Judge.

A. M. White was convicted of murder, and he appeals.

Affirmed.

Tom F. Reese, of Comanche, and Arthur R. Eidson, of Hamilton, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for murder; punishment, thirty years in the penitentiary.

We find in the record twenty-eight bills of exception, each of which has been carefully considered. Bill of exceptions No. 1 complains of the admission in evidence of a conversation between one Lennie Cropper and Tipton on the night of the alleged murder. It is evident that if there was a conspiracy to kill and rob deceased, to which appellant and Tipton were parties, its object was to get the money of deceased Milton for the joint use of appellant and Tipton. Manifestly, appellant had gotten no part of the proceeds of the robbery at the time of said conversation, and the conspiracy had not yet achieved its object, and what was said by one party thereto in furtherance of the object of such conspiracy, if any, would be evidence admissible against the other. See Sapp v. State, 87 Tex. Cr. R. 606, 614, 223 S. W. 459. We see no error in bills of exception 2, 3, 4, and 5 which bring forward objections to the court's charge on principals, which objections are unsound for the reason above referred to. If there was a conspiracy, clearly appellant was a principal offender, and if there was such conspiracy, its object had not yet been attained, and the conspiracy would not be ended until such was the fact.

Bill of exceptions 6 complains of the refusal of a special charge, in effect, that Monte Sims was an accomplice and could not corroborate herself, and that one accomplice could not corroborate another, etc. There was but one accomplice witness in this case, and the special charge was manifestly erroneous. We see no substantial difference between the correct parts of this special charge and the charge given on the same subject by the court in his main charge.

We think the testimony of Monte Sims that Tipton left money with Shorty Cropper on the night of the killing to be carried and delivered to appellant the next day was also admissible upon the theory that there was a conspiracy between appellant and Tipton which was not yet consummated. See Sapp v. State, supra.

We see no error in bill of exceptions 8. The transcript upon change of venue from Comanche county to Coryell county showed a proper order by the court directing said change of venue, upon agreement of both parties, on December 12, 1933; also that when the papers reached the office of the clerk of the district court of Coryell county the transcript was marked filed as of the date received, but such file mark was not put upon the indictment or other original papers when so received. The bill of exceptions reflects the fact that when attention was called the trial court ordered the file mark put on said papers as of the date they were received by the clerk of the court of Coryell county, which was prior to the convening of the trial term of the court below.

Bills of exception 9 and 10 seem not to call for any discussion. Bill of exceptions 11 complains of the testimony of the sheriff as to the caliber of the weapon used in shooting deceased. We fail to perceive any injury possible, and are of opinion the sheriff was qualified to give the answer shown.

Bill of exceptions 12 complains of the fact that the sheriff was permitted to testify that discs of powder penetrated the face, hands, and skin of deceased, and that a man so shot would not fall in the position in which he found the body of deceased when he reached the place of the homicide. We see no material error in this, if any. Appellant testified in his own behalf, and swore that when deceased was shot the man who shot him went right down on top of him. Appellant also testified that before the sheriff got there he had raised the head of deceased and rubbed his face, and put his hat under his head. In other words, it is quite evident that there was abundant opportunity for the position of the body of deceased to have been moved subsequent to being shot. Bill of exceptions 13 fails to show what the witness would have testified had he been permitted. Bills 14 and 15 seem to call for no discussion on our part. We perceive no error in the complaint in bill of exceptions 16. The witness was permitted to say that he took appellant to the office of Mr. Eidson in Hamilton, and that appellant told him when he returned he did not get to see Mr. Eidson. The proposed statement, viz., that the reason he did not get to see Mr. Eidson was because the latter was out of town, would appear to be but hearsay. Bills of exception 17, 19, and 20 complain of the admission of testimony which was offered by the state upon the theory that there was a conspiracy, to which appellant and Tipton were parties, and that the conspiracy was not yet fully consummated, hence the testimony was admissible. We cannot agree with appellant's contention that any of said bills reflect error.

Bill of exceptions 18 presents objection to the testimony of Monte Sims upon the ground that she had been convicted of a felony and was confined in jail and not pardoned. The Legislature seems to have conferred the right of testifying upon parties who have been convicted of felonies and are confined in the penitentiary, or in jails. See Acts 39th Leg., 1926, First Called Sess., p. 20, c. 13, § 1 (Vernon's Ann. C. C. P. art. 708); Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978.

Bills of exception 21, 22, 23, 24, 25, and 26 have been considered, but are not deemed of sufficient importance to call for discussion.

Appellant's bill of exceptions 27 is copied literally as follows:

"Be it remembered that on the trial of the above styled and numbered cause and while the witness John Reese, a witness for the State, was testifying on direct examination, at the instance of the State and over the objection of the defendant, the district attorney propounded to said witness, the following question.

"Q. `Are you acquainted with the general reputation of the defendant A. M. White in the community and town of Comanche as one of a bootlegger?'

"To which the defendant then and there objected and the court sustained the defendant's objection, and the district attorney, over the objections of the defendant, stated that `We feel that your question as presented awhile ago is a material question, and one that would tend to shed light and assist the jury in determining the facts, that if this witness were permitted to answer— he has said he is familiar with his reputation as a bootlegger, because to show the theory of the State through this case that the defendant has two motives, or more in the highjacking and killing of the deceased P. H. Milton, for the reason that he knew the deceased carried money on his person, and desired to obtain a portion of that money by having him hi-jacked by Tipton and he further desired to have him killed, knew he would not hist and desired to have him killed; that he was a competitor in business, that of bootlegging, and that this witness would answer that his reputation is that of a bootlegger.'

"And the court sustained the objections to the question asked and stated at said time that it was not the proper question because the defendant's reputation was not in issue, and thereupon the defendant took his exception to the attempt on the part of the State to inject into the record a matter for the direct purpose and with a view to creating in the minds of the jury, prejudice against the defendant, and stated to the court at that time that the defendant wanted all of said matters to be shown and set forth in a bill of exceptions preserved at said time, all of which was allowed by the court."

In his brief appellant says that it was error for the court below to allow the state's attorney to make the statement above set out, in the presence of the jury, after the court had sustained appellant's objection to the question propounded to witness Reese. In passing on this or any other complaint appearing in any bill of exceptions, this court must as nearly as it can, as ascertained from the recitals of the bill, put itself in what appears to have been the situation of the trial court in making the ruling complained of. In other words, does bill 27 show that the complaint intended was of the statement made by the state's attorney, and, if so, is it in such condition as to make the complaint one of merit, and one which should be regarded by us as calling for reversal of this case? Does said bill show that said statement was made in the presence of the jury? For many reasons, we are impelled to answer in the negative. If the members of this court find themselves in serious doubt as to whether the proof shows such statement to have been made in the presence of the jury, it would not appear to be difficult to conclude that the trial court may have concluded that it was not. We further observe that nothing in the bill appears to indicate that the court below felt himself called on to rule upon any objection made to any statement, save that involved in the question asked to which the objection was sustained. We do not know from any recital in the bill whether the attorney approached the court and made his statement referred to, or whether it was made in the hearing of the jury. There is no affirmative statement either way, and we are left to conclude that the trial court knew that it was not in the presence of the jury. Apparently after the statement referred to was made, the court below "sustained the objection to the question," and appellant then "took his exception to the attempt on the part of the state to inject into the record a matter...