Williams v. State

• Decision Date: 23 February 1944
• Docket Number: No. 22760.,22760.
• Citation: 179 S.W.2d 297
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W.2d 297

WILLIAMS v. STATE.

No. 22760.

Court of Criminal Appeals of Texas.

February 23, 1944.

Rehearing Denied April 19, 1944.

Appeal from District Court, Terry County; J. E. Garland, Special Judge.

H. H. Williams was convicted of murder with malice, and he appeals.

Affirmed.

Crenshaw, Dupree & Milam, of Lubbock, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder with malice, and assessed a penalty of ten years in the penitentiary.

The facts show evidence that there had been some minor disturbances between appellant and the deceased, Mr. Hodges, relative to the cattle and hogs of appellant trespassing upon the cultivated lands of the deceased, who lived just adjoining appellant's farm in Terry County. There were no eyewitnesses to the tragedy, save appellant and the deceased. The State was relegated to the domain of circumstantial evidence, and such was charged upon by the trial court.

It was shown that appellant and the deceased met at a crossroad near the division line between their two farms on July 24, 1943, and soon thereafter Mr. Hodges' dead body was found in the road, appellant being near by with an automatic shotgun in his hands, with three loaded cartridges therein and two empty shells near by. Mr. Hodges' body was found to have been penetrated by No. 4 shot, there being within a distance of thirty-six inches on the front part of his body, from his knee to his shoulder, 110 shot; there also being an oblong wound large enough to contain three fingers of a man's hand just to the right of his navel, which contained some shot. There was also found a further oblong wound in the bank of his head, which also contained some gun wadding, this wound evidently having shattered the structure of the skull. There was also a deep powder burn on Hodges' left hand, and the heel of such hand was shattered. This body was found by officers lying on its face, which was embedded in the sand up to its ears, and under the right-hand side of the body there was found a 410 pistol-shotgun, loaded and cocked; and also in Mr. Hodges' auto a 22 caliber rifle was found, fully loaded and cocked.

It was the theory of the State that appellant shot Mr. Hodges three times, once at a distance of about 50 feet; again at a lesser distance, the powder burns being testified to as active at a distance from the burned object of about 18 inches, and the State contending the final shot in the back of the head to have been delivered while Mr. Hodges lay in the road on his face.

Appellant's version thereof began with a threat in the latter part of February, 1943, testified to by his wife, wherein the deceased had told her that if appellant did not keep his hogs out of deceased's crops he would kill the hogs and appellant also, which threat was communicated to appellant. That on the evening of the killing appellant saw deceased near a vacant house on deceased's premises, and drove down to meet him and to try to adjust their differences. That deceased saw him and waived at him; that they met at the crossroads, and both got out of their cars; that deceased had this 410 pistol-gun in his hand, and appellant said to deceased, you seem to be hunting trouble, deceased replying, That's right, and I am fixed for it; that appellant ran back to his car and procured his automatic shotgun, and turning around he saw the deceased as if about to raise the 410, and appellant fired from his hip; that the deceased turned around, and appellant fired again, and deceased fell, and no further shots were fired by him; the parties were only about six to eight steps apart.

The first bill of exceptions complains on account of the failure of the trial court to sustain his motion for a change of venue in this cause. It is shown that a motion, properly supported by compurgators, was seasonably filed, and under the testimony of some nineteen witnesses, twelve of them expressed the opinion that due to the amount of discussion, and the prejudice expressed against appellant, they were of the opinion that he could not obtain a fair trial in Terry County. Appellant's remaining seven witnesses did not express any opinion in such matter. The State countered with the testimony of fourteen witnesses, who each testified that in his opinion appellant could obtain a fair trial in Terry County, although most of the witnesses testified that they had heard at one time or another that appellant had killed from one to seven or eight men.

We are cited by appellant to the case of Bond v. State, 121 Tex.Cr.R. 269, 50 S. W.2d 813. In that case it was shown that the deceased person had a large number of relatives in the county, and that four distant relatives actually sat upon the jury. The only newspaper published in the county, which was Terry County, published an article partially headed: "J. A. White shot down in cafe here Sunday without chance for life. * * *" We think the Bond case furnishes us no parallel to the present proof. In the case of Boyd v. State, 111 Tex.Cr.R. 405, 13 S.W.2d 104, 105, the accused had previously been tried and convicted for a similar offense, and the matter had been widely discussed both orally and in the local papers, the charge being the making of a false entry in a local bank in which a shortage was evidently found by the bank examiners. In reversing this cause for a failure to change the venue, the court, quoting from McNeely v. State, 104 Tex.Cr.R. 263, 283 S.W. 522, said:

"The duty is upon the trial court to weigh the evidence, and if therefrom there arise conflicting theories, one tending to show prejudice of the nature mentioned and the other the contrary, the discretion as to the court is to adopt either. In the absence of abuse of this discretion, the judgment is not to be disturbed upon the appeal. If, however, the evidence is such that it leads to the conclusion that bias, prejudice, or prejudgment of appellant or his case is such as to render it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application."

In the case of Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003, there seemed to be no substantial denial of the fact that there was great prejudice against the accused, who was charged with the killing of his own son. Out of the jury venire and talesmen presented, sixty-eight of them disqualified on account of an opinion, believing the accused guilty. We can readily see the wisdom of a reversal therein for a failure to change the venue. However we find no such unanimity of opinion presented here. In no way is there evidenced any consensus of a prejudgment of this case; no large disqualification of jurors by virtue thereof; no difficulty in procuring a jury shown; and no evidence of prejudice upon their part in their verdict. Applying the rule as above quoted, we find no evidence of bias, prejudice or prejudgment of this case such as to render it improbable that a fair and impartial trial could be given appellant in that county. It is true that certain rumors were testified to relative to how many men appellant had killed, nevertheless it is shown that appellant not only offered but proved a good reputation, not only for truth and veracity but also as a peaceable and law-abiding citizen, and no intimation of any kind came from any witness in the trial relative to any rumor or any misconduct upon his part. We do not feel justified in saying that the...