Wilkins v. State, 19156.

• Decision Date: 08 December 1937
• Docket Number: No. 19156.,19156.
• Citation: 115 S.W.2d 907
• Parties: WILKINS v. STATE.
• Court: Texas Court of Criminal Appeals

115 S.W.2d 907

WILKINS v. STATE.

No. 19156.

Court of Criminal Appeals of Texas.

December 8, 1937.

Rehearing Denied April 27, 1938.

Commissioners' Decision.

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

Birdie Wilkins was convicted of being an accomplice to murder, and she appeals.

Affirmed.

Roy A. Scott, of Corpus Christi, for appellant.

Leo Brewster, Asst. Dist. Atty., of Fort Worth, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is accomplice to murder; the punishment, confinement in the penitentiary for twenty-five years.

The indictment alleged that Luther Edgar Sumrall was the principal. The state introduced in evidence Sumrall's confession in which he admitted that he placed deceased, who was the husband of appellant, upon a railroad track where he was killed by a train. Appellant's confession was to the effect that she promised to pay Sumrall part of the proceeds of an insurance policy on the life of deceased to induce him to commit the homicide. Some of the witnesses for the state testified that some time prior to the homicide appellant had requested them to kill deceased.

Testifying in her own behalf, appellant repudiated her confession and declared that the officers had coerced her to make it. Further, she denied that she had any connection with the homicide.

The testimony of the officers was to the effect that they had in no manner mistreated appellant. In short, according to their version, the confession was voluntary.

As already pointed out, in her confession appellant admitted her guilt. Upon the trial she denied that she was in any manner connected with the homicide and declared that her confession had been coerced. The question whether the confession was voluntary was submitted in the charge. The only direct evidence in the record connecting appellant with the commission of the homicide as an accomplice came from the confession. Appellant excepted to the charge of the court as follows: "The defendant further excepts and objects to the court's main charge because nowhere in said charge does the court instruct the jury upon the law of circumstantial evidence."

It is observed that nowhere in the exception was the trial court advised that appellant sought to have the jury instructed that in the event they rejected the confession, the state relied upon circumstantial evidence. In the state of the record we deem the exception to have been too general. It might be added that a similar situation was presented in Johnson v. State, 82 Tex.Cr.R. 82, 197 S.W. 995. In that case the court reached the conclusion that a charge on circumstantial evidence was not required. However, in view of the fact that we hold the exception to have been insufficient, it is deemed unnecessary to determine whether the announcement in Johnson's Case should receive our approval. See Snow v. State, 106 Tex.Cr. R. 222, 291 S.W. 558.

It appears from bills of exception 11 and 12 that Tony Garcia, a witness for the state, was permitted to testify, over appellant's objection, that he had married the appellant in 1932 and was later divorced from her. It is observed that appellant testified on cross-examination, without objection, that she had been married to Tony Garcia prior to the time she married deceased. Under the circumstances, appellant is in no position to complain. We quote from 4 Tex.Jur. p. 587, as follows: "It is a general rule also that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony or by evidence which was not objected to, as where the accused voluntarily gave testimony substantially the same as that erroneously received over objection."

In support of the text many authorities are cited, among them being Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818.

In her motion for new trial appellant alleged that the jury were guilty of misconduct in discussing new and additional evidence. The bill of exception bringing forward the testimony adduced upon the motion for new trial recites that the court heard the testimony of three members of the jury. The bill embraces the testimony of only two members of the jury. In this situation we must indulge the presumption that the juror whose testimony has not been brought forward denied that the misconduct in question occurred; and that the trial judge acted upon sufficient evidence in overruling the motion for new trial.

It is shown in bill of exception 27 that counsel for the state, in his closing argument, stated to the jury, in substance, that every insurance policy he had seen had carried a double indemnity clause to cover death by accident. Appellant's objection to the argument was sustained and the jury instructed not to consider same for any purpose. Continuing his argument, counsel for the state then stated to the jury that if the policy had carried a double indemnity clause, appellant would have received an additional thousand dollars. Appellant again objected and the objection was overruled. It appears that after the death of deceased appellant had assigned a policy for $1,000 on the life of her husband to the undertaker for the purpose of securing the payment of the funeral expenses. Counsel for appellant had argued to the jury that after deducting $400—the amount of the funeral expenses—from the proceeds of the policy there would have been only $600 left for division between Sumrall, the alleged principal, and appellant. It appears that the insurance policy had not been introduced in evidence and there was no proof that it contained a double indemnity clause. In view of the fact that the court instructed the jury to disregard the statement of the district attorney that every insurance policy he had seen carried a double indemnity clause, we are of opinion that the statement alone that appellant could have collected an additional thousand dollars if the policy contained such clause is not of sufficient materiality to warrant a reversal of the judgment of conviction.

Bill of exception No. 1 relates to appellant's contention that the special venire was not drawn in the presence of the trial judge in accordance with article 591, C.C.P., as amended, Vernon's Ann.C.C.P. art. 591. The bill of exception, as qualified, shows that the names were drawn in the presence of the trial judge by the clerk and that thereafter the cards bearing such names were carried in the office by the clerk and by him and a deputy clerk listed in the order in which they had been drawn. Appellant cites Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, in support of her contention that reversible error is presented. In that case a reversal was not predicated upon the failure of the clerk to list the names in the presence of the trial judge. In view of the fact the bill of exception in the present case shows that the names were listed in the order in which they were drawn, and that appellant could have been in no manner injured by the procedure followed, we are of opinion that reversible error is not presented.

In one of her bills of exception appellant complains of the action of the trial court in overruling her first application for a continuance. The court qualifies the bill to the effect that sufficient diligence was not shown and to the further effect that upon the motion for new trial the affidavit of the absent witness showing the testimony he would have given was not presented. We think the bill fails to reflect error.

Several bills of exception relate to appellant's objections to certain portions of the confession of the principal. This confession was available to fix the principal's guilt, and all of it necessary to connect him in an orderly way with the transaction was admissible. The fact that interwoven in such confession were expressions connecting the appellant with the acts of the principal, and which could not have been eliminated without rendering the confession incomplete and fragmentary, did not render same nonavailable to the state. Smith v. State, 91 Tex.Cr.R. 15, 237 S.W. 265; Espalin v. State, 90 Tex.Cr.R. 625, 237 S.W. 274. The court properly limited the purpose of the confession to establishing the principal's guilt. Smith v. State, supra.

An examination of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

The indictment alleged that Luther Edgar Sumrall with malice aforethought killed Arthur L. Wilkins by placing an automobile containing Wilkins on a railroad track so that he would be run over and killed by a railroad train, and that appellant prior to the commission of...