Wilson v. State
| Decision Date | 25 January 1956 |
| Docket Number | No. 27933,27933 |
| Citation | 289 S.W.2d 597,163 Tex.Crim. 202 |
| Parties | Ray WILSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Carl Cannon, Groesbeck, Bowlen Bond, Teague, for appellant.
Bradley & Geren, Lewis M. Seay, County Atty., Groesbeck, Joe Schultz, former County Atty., Mexia, Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for murder with malice; the punishment, ten years in the penitentiary.
This is the second appeal of this case, the first conviction having been reversed by this Court in Wilson v. State, Tex.Cr.App., 275 S.W.2d 798.
Appellant and his wife, the deceased, lived in the Mt. Calm community in Limestone County. The evidence shows that on the afternoon of February 22, 1954, on an occasion when the appellant, his wife, and some children were attempting to drive a cow through a gate to a pasture, the appellant threw a rock which struck his wife on the head and inflicted fatal injuries from which she died three days later.
It was the State's theory that appellant intentionally threw the rock at his wife, which appellant denied and contended that his wife was struck by accident.
Appellant's son, Dee Ray Wilson, who was six years of age at the time of the tragedy and one of the children who was helping drive the cow, upon being called as a witness by the State, testified that when his father threw the rock his father was behind the cow and that his mother was behind his father, and further testified, 'He throwed towards my mama,' and '* * * he didn't throw it at the cow.' Dee Ray further testified that he had seen his father hit his mother before, once with a wrench over the eye, and with a hammer on the leg.
The State offered witnesses whose testimony showed a prior course of harsh and cruel treatment by the appellant towards his wife. Under their testimony it was shown that on occasions when appellant's wife would be helping him with the farm work he would curse, strike her with his fist and slap her.
The State's testimony further shows that prior to the day of the tragedy the appellant, upon coming to the home of the witness Alfred Kline, when asked why he did not bring his wife, stated to the witness, and that at the hospital in Waco before his wife died, appellant, in telling the witness L. W. Neal how the tragedy happened, stated that it was not an accident.
Appellant, as a witness in his own behalf, testified that he threw the rock at the cow, with no intention of hitting his wife, and stated that she was struck by accident. He further denied the acts of misconduct which the State's witnesses testified he had committed upon his wife, and offered numerous witnesses who had known him and his wife during her lifetime and who testified that they appeared to be very much in love and devoted to each other.
The jury chose to accept the State's version of the transaction and we find the evidence sufficient to support their verdict.
Appellant contends that the court erred in permitting the State to introduce in evidence, over his objection, a rock that contained grass and blood stains, which Sheriff Jack Bothwell testified he picked up near a spot of blood at the scene of the killing while making an investigation four days thereafter. It is appellant's contention that the rock was not sufficiently identified as the one thrown by him in view of the sheriff's testimony that he could not say it was the rock that hit appellant's wife and the appellant's testimony that the rock he threw was smaller than the rock introduced in evidence.
Under the record, the court did not err in permitting the rock to be admitted in evidence. In prosecutions for homicide the weapons with which the crime was committed, or alleged to have been committed, are admissible in evidence. 22 Tex.Jur., Sec. 200, p. 791. The identification of the rock as having been found at the scene of the killing was sufficient to authorize its admission in evidence. The lack of positive identification of the rock as the one thrown by appellant affected its weight as evidence rather than its admissibility. 18 Tex.Jur., Sec. 204, p. 330.
We find no merit in appellant's contention that the court commented upon the weight of the evidence by presuming that the rock introduced in evidence was thrown by him in instructing the jury in Paragraph No. 13 of the charge that the rock introduced in evidence by the State was not a deadly weapon per se, and that the law did not presume that the appellant intended to kill the deceased 'from the means used, that is, the use of the rock.' It is apparent that the court's instruction referred to the rock which had been introduced in evidence, and, under appellant's admission that he threw the rock that killed his wife, such instruction was favorable to him and no possible injury is shown.
Appellant complains of the refusal of the court to declare a mistrial following a statement made by the special prosecutor while cross-examining appellant's witness A. E. Thatcher.
The record shows that after the witness had testified on direct-examination that appellant and his wife were a devoted couple, on his cross-examination by State's counsel the following transpired:
'
It is shown that upon appellant's objection to the remark by State's counsel, the court instructed the jury not to consider the statement and then admonished counsel not to make any such statement again and admonished the witness not to answer the questions by asking a question.
Appellant insists that the statement by State's counsel was an expression of his personal opinion of appellant's guilt which constituted such error that could not be cured by the court's instruction. With this contention we do not agree. The statement was not that State's counsel believed appellant was guilty of the offense charged but that he could assume that appellant had slapped and cursed his wife, as testified to by a State's witness, and that he believed that he did so slap and...
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Olson v. State
... ... 573, 295 S.W.2d 215. While some of the argument probably should not have been made, there is nothing presented for review, because there was no timely objection pointing out that part of the argument appellant considered objectionable and nothing is presented for review. Wilson v. State, 163 Tex.Cr.R ... Page 759 ... 202, 289 S.W.2d 597. When an objection to the argument is made for the first time in an amended motion for new trial, it cannot be considered. Blassingale v. State, Tex.Cr.App., 408 S.W.2d 115; Singleton v. State, 171 Tex.Cr.R. 196, 346 S.W.2d 328 ... ...
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...used. See Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974); Jackson v. State, 486 S.W.2d 764 (Tex.Cr.App.1972); Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597 (1956). We have held that the lack of positive identification of such an exhibit affects the weight of the object as evidence, r......
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Cole v. State, 42549
...the weapon affects its weight as evidence rather than its admissibility. Futch v. State, Tex.Cr.App., 376 S.W.2d 758; Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597; Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115; See also Flores v. State, Tex.Cr.App., 372 S.W.2d 687; Gonzales v. S......
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De La Garza v. State
...The weapons with which the crime was committed, or alleged to have been committed, are admissible. Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597, 599 (Tex.Cr.App.1956). The general rule is that an offense does not occur in a vacuum and it is proper to admit evidence of the surrounding ......