White v. State

• Decision Date: 01 February 1950
• Docket Number: No. 24626,24626
• Citation: 228 S.W.2d 165,154 Tex.Crim. 489
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 165

228 S.W.2d 165

154 Tex.Crim. 489

WHITE v. STATE.

No. 24626.

Court of Criminal Appeals of Texas.

Feb. 1, 1950.

Rehearing Denied April 5, 1950.

Chas. Nordyke, Stephenville, for appellant.

Sam Cleveland, District Attorney, Stephenville, Sam Russell, (Special Prosecutor) Stephenville, George P. Blackburn, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged as a principal for the offense of the murder of Crockett Ross, and by the jury was given the penalty of death, and he appeals.

The indictment herein contains three counts, two of which were not submitted by the court; and the one submitted alleged that appellant, on the 28th day of January, 1949, did kill Crockett Ross by shooting him with a gun.

The facts proven herein show that on such date, one Robert Bagwill, a 17-year-old boy and a nephew of appellant's ex-wife, and the appellant, a man 47 years old, were living together in Mineral Wells; that appellant and Bagwill decided to 'make some places', meaning thereby to go out and rob someone; that they entered appellant's automobile and finally came to Stephenville in Erath County. They found a place that suited them near the John Tarlton State College, it being a filling station on a corner near thereto. They drove around this place and then decided to hold it up.

Appellant parked his car around on the north side of the block in which this filling station was located, and Bagwill got out, having a .38 caliber Police Positive Pistol with him, while appellant waited for Bagwill in order to take him away in appellant's car after the robbery. This boy was gone about an hour and was seen in Mr. Ross' station by witnesses who identified him. Finally Bagwill came back to the car and told appellant that he had to shoot the man in the filling station who had attacked him with a hammer when he pulled his gun and demanded the money; that he shot six times and snapped the gun when it was empty; that the man fell over on Bagwill who pushed him off and then rifled the cash drawer and took the man's pocket-book out of his pocket; that they then drove back to Mineral Wells. Bagwill's overcoat was covered with blood, as well as his clothes and shoes, and appellant burned them up when they got home. There was something over $300.00 obtained in this robbery, and appellant got around $100.00 thereof. They soon started to Oklahoma, and at Jacksboro, Texas, they bought a paper and learned that Mr. Ross was dead.

The foregoing is taken from a written statement made by appellant which was introduced in evidence.

A futher statement relative to this homicide was taken orally from appellant in which he stated that Bagwill attempted to destroy the pistol with which Mr. Ross was shot by battering the same so that it would not be recognizable; that appellant then took such pistol and threw the same into a pool of water some distance out from Mineral Wells. Later, in company with some officers, appellant went to such pool, waded out therein and soon found the pistol from which it was shown that certain bullets had been fired, some of them coming out of Mr. Ross' body, and one out of the wall of the filling station.

Upon the careful trial court's own motion this cause was moved on a change of venue to Palo Pinto County, and we think the court's statement in such motion justified such change.

Bill of Exceptions No. 1 relates to the admission of an oral statement made by appellant while under arrest in which he told the officers that he had thrown this pistol in a hole of water, and in company with these officers appellant directed them to such water, waded out therein, and recovered such pistol. We think this testimony was admissible under Art. 727, C.C.P., and under the phrase therein that 'unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.' The objection to this oral statement recites that same was made under fear and not when appellant was in sufficient possession of his faculties to make a voluntary statement, and had no information as to what was going to happen to him. The trial court was correct in allowing the statement made by appellant at such time as follows:

'Dan White said he and Robert had planned to go to Stephenville and pull a highjacking, burglarize something; that is, steal something, and said they stopped some place at a cross roads or something and got some gasoline and then went on to Stephenville, and as soon as they got to Stephenville they drove around looking for a place to highjack and they came across this filling station out by the college. By reason of what Dan White told me there at the time, and where he carried me after that time we did find the gun with which Robert Bagwill (Crokett Ross) had been killed.'

Bill No. 2 relates to the following portion of such oral statement as testified to by Mr. Suttle, a peace officer, at Vernon, Texas, as told to him by appellant: 'They drove around and picked out this filling station out by the college and drove by it two or three times and saw this fellow Ross and decided that would be a good place and somewhere around 7:00 they parked on the opposite side of the block and Robert got out with a gun and left Dan at this place on the opposite side of the block from the filling station. (Interruptions and arguments, see SF 45 & 46). He said Robert was gone a long time; don't remember how long; and after awhile he came running back, Robert came running back to the car and said, 'I had to kill him * * *."

This statement was objected to because it was alleged that this further statement exceeded the latitude allowed by the above-quoted portion of Art. 727, C.C.P., but that thereunder, the statement should have been held to render admissible only that portion thereof which related to divulging where the pistol was secreted, and not to further details relative to what had happened at such alleged hold up.

Where a confession, otherwise inadmissible, contains facts which conduce to establish one's guilt, such as the finding of the instrument with which the offense was committed, the whole of such statement is admissible. See Warren v. State, 29 Tex. 369, 370; Selvidge v. State, 30 Tex. 60; Walker v. State, 2 Tex.App. 326; Weller v. State, 16 Tex.App. 200; Walker v. State, 9 Tex.App. 38; O'Connell v. State, 10 Tex.App. 567; Massey v. State, 10 Tex.App. 645. See also Smith v. State, 34 Tex.Cr.R. 123, 29 S.W. 774; Spearman v. State, 34 Tex.Cr.R. 279, 30 S.W. 229; Williams v. State, 34 Tex.Cr.R. 327, 30 S.W. 669; Gowans v. State, 64 Tex.Cr.R. 401, 145 S.W. 614.

Bill No. 3 relates to the written statement of appellant which was introduced, and its introduction was objected to on the following grounds: 'Because the statement was made two days after he was arrested; and we want to interpose the objection that the statement is not voluntary; it was obtained by force, threats and the application of physical punishment and rendered him to where (he) wasn't capable of acting voluntary at the time this statement was signed.'

There is no testimony in the record substantiating such objection, no violence shown, no force nor threats, and no testimony relative thereto. We quote from appellant's written confession, which is in no way contradicted, the following: 'I have been promised nothing whatever, this is all true and correct, I have just told it because it is the truth. Mr. Frank Granbury, and Mr. Robert George, who are the others in the room at this time hearing this statement made by me, have not raised their voice to me or said one word during the time it is being taken. I have made this statement of my own free will and voluntarily knowing I did not have to at all and knowing it could be used against me on the trial. On the trip to Oklahoma I just knew I would be picked up and caught for this but I wasn't until I was arrested last Sunday.'

Bill No. 4 relates to the argument of the Honorable Sam Russell, Special Prosecutor, wherein he likened the testimony in this case to the tale found in the book, 'Oliver Twist' by Dickens, where one Fagin was alleged to have trained young boys in certain acts of thievery. This bill is qualified by the court to show that no objection was made to such argument at the time it was made, and the first time anything was made known to the court concerning the same was when this bill was presented to the trial court for its approval on the 10th day of August, 1949, the trial herein having concluded on May 17, 1949. Appellant should have objected to such argument, if dissatisfied therewith, at the time it was made. See Salinas v. State, 113 Tex.Cr.R. 142, 18 S.W.2d 663; Smith v. State, 104 Tex.Cr.R. 616, 286 S.W. 223; Page v. State, 104 Tex.Cr.R. 63, 281 S.W. 871; Ferguson v. State, 95 Tex.Cr.R. 212, 253 S.W. 290; Ferguson v. State, 101 Tex.Cr.R. 670, 276 S.W. 919; Alexander v. State, Tex.Cr.App., 8 S.W.2d 176; Ross v. State, 102 Tex.Cr.R. 364, 277 S.W. 667; Simmons v. State, 93 Tex.Cr.R. 421, 248 S.W. 392, and cases cited.

Bill No. 5 alleges misconduct of the jury in that there was discussed among them in their deliberations appellant's failure to testify. The testimony heard on the motion for a new trial shows that a juror made the statement in the jury room that he wondered why they didn't put the defendant on the stand. It seems that someone said he had already...