Wynne v. State

• Decision Date: 17 November 1909
• Citation: 127 S.W. 213
• Parties: WYNNE v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 213

WYNNE v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1909.

Rehearing Denied April 19, 1910.

Appeal from District Court, Walker County; S. W. Dean, Judge.

John Wynne was convicted of murder in the first degree, and he appeals. Affirmed.

W. O. B. Gillaspie, for appellant. F. J. McCord, Asst. Atty. Gen., Gordon Boone, Dist. Atty., and Dean, Humphrey & Powell, for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and given the death penalty.

1. Appellant filed a motion for continuance for the want of the testimony of Lem Smiler, who was alleged to reside in Galveston county. If diligence be conceded, the application for continuance is fatally defective, in that it did not contain at the time it was presented to the trial court the statutory requisite, to wit, that the application was not made for delay. Furthermore, the evidence would be of an impeaching character, and therefore same would not authorize a continuance. Furthermore, we do not believe the testimony would have been material or probably true in the light of this record. See Zumwalt v. State, 5 Tex. App. 521, and White v. State, 9 Tex. App. 41.

2. Appellant insists the court erred in permitting Sallie Wynne, Buster Wynne, and Eddie Wynne to testify to facts stated in bills of exception Nos. 2, 3, and 4. Each of said witnesses, as disclosed by said bills, was permitted to testify, in substance, as follows: That their mother made a statement. That she fell down on the ground out doors, and exclaimed: "Oh Lord, have mercy! John, you have killed me." Sallie Wynne was asked if Buster Wynne said anything. She replied, "Buster said, `Oh Lord, have mercy! Papa, you have killed Mama,'" which testimony was objected to by appellant on the ground that it was not res gestæ. The bill is approved with this explanation: "That the witness Sallie Wynne was sleeping in a room adjoining and opening into her mother's room. The shot woke her. She immediately got out of bed and went through her mother's room to the gallery, and there saw her mother and heard her and Buster Wynne make the statements complained of. I understood the objections to have been made as stated, except the one that the deceased afterwards made contradictory statements as to the killing, but allowed the testimony because it was immediately after the shooting and was clearly res gestæ." As explanatory of the above bill, it may be stated that appellant was charged with killing his wife. The state's evidence suggested that he crept into a window, returning home at night from the town of Huntsville about 9 o'clock, secured a gun from under the bed of his son Buster, and fired its contents into the body of his wife, who was sleeping with an infant child; that the wife immediately awoke, making the statement above detailed, after having run a few feet out on the gallery, where she fell. Appellant was present, and heard all the statements. This testimony was clearly res gestæ as indicated by a long line of authorities, some of which we copy from the state's brief, as follows: Rice v. State, 54 Tex. Cr. R. 149, 112 S. W. 299; Holden v. State, 18 Tex. App. 91; Browning v. State, 26 Tex. App. 432, 9 S. W. 770; Clement v. State, 22 Tex. App. 23, 2 S. W. 379; Jennings v. State, 42 Tex. Cr. R. 78, 57 S. W. 642; Tooney v. State, 8 Tex. App. 458; Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720.

3. Appellant also objected to the court permitting Gus Hall to testify that deceased told him immediately or soon after the killing that, when she went out on the gallery, she saw the defendant come from around the west side of the house. The bill certifies that this is part of the declaration of deceased, and, furthermore, that counsel for appellant did not object to same. Either fact would dispose of appellant's objection.

4. Appellant insists the court erred in giving paragraph 13 in its charge to the jury, which paragraph is as follows: "If you do not find from the evidence beyond a reasonable doubt that the defendant, and not Buster Wynne, killed the deceased, you should acquit him." This paragraph, the court says in the bill, was inserted in same after the main charge was completed at the request and instance of appellant. Being, therefore, if error, invited error, which rule this court as well as the Supreme Court of this state recognizes, appellant could not complain of same, but, aside from this, we see no legal objection to the charge. The court properly charged on circumstantial evidence, and every other phase of the law applicable to this case. In addition to other things, the court charged on the issue of alibi.

The evidence in this case, in substance, is as follows: Appellant and his wife, two daughters, and a son were living some four or five miles from the town of Huntsville. The homicide occurred on Monday night. On Wednesday before, when the family attempted to eat their usual meal, they discovered that the syrup was very bitter, and that they could not eat it. On Thursday appellant went hunting, killed some squirrels, and returned and cleaned them. It was unusual for him to clean game. Appellant cut the game up, and his wife cooked the same for breakfast, but the meat was so bitter they could not eat same. Appellant was not at the breakfast table that morning. On the night of the homicide Buster Wynne, appellant's son, a boy about 19 years of age, was sleeping with his brother, Eddie Wynne, in a room immediately back of the room usually occupied by his mother and father, and on the night in question occupied by his mother and her infant child. Adjoining the mother's room on the east was the room in which the two daughters...