York v. State, 23436.

• Citation: 198 S.W.2d 106
• Decision Date: 30 October 1946
• Docket Number: No. 23436.,23436.
• Parties: YORK v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

198 S.W.2d 106

YORK v. STATE.

No. 23436.

Court of Criminal Appeals of Texas.

October 30, 1946.

Rehearing Denied December 18, 1946.

Appeal from District Court, Gregg County; Earl Roberts, Judge.

Edward J. York was convicted of murder with malice, and he appeals.

Judgment reversed and cause remanded.

Fred Erisman, of Longview, for appellant.

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

BEAUCHAMP, Judge.

Appellant was given ten years in the penitentiary on a charge of murder with malice, the alleged victim being his wife, Betty York.

Only two witnesses testified in the case. Called in behalf of the prosecution, Eula Murry said that she lived in a room in the same apartment house with appellant and his wife. The tragedy took place in a room occupied by two boys which adjoins the bedroom of the witness. Late in the afternoon of December 18, 1945, the witness heard talking in the room, but nothing that sounded like any disagreement. She merely heard voices. She heard a noise that sounded like a slap and soon thereafter a shot, followed by a scream. She went into the room and saw appellant standing by Betty looking "like he was just stunned and didn't know hardly what to say or do, and he said `I shot her. Call an ambulance.' Betty was on the bed." A little later a Mr. Ford came in the room, followed by Buddy Woodall. Appellant handed the latter a pistol and asked that they call for an ambulance. He was described as trying to help his wife. The witness never heard him say anything else than that herein above quoted. She went into her room and soon heard an ambulance come. On cross examination she said, "As to whether there was anything in the manner or tone of the voice of these people that indicated either was mad at the other will say no, I never heard the sound of a voice raised or anything. I just heard a slap * * *" followed by a pistol about five minutes later. She further described the appellant as "trying to hold the artery or something." She did not know where the pistol came from.

There is no evidence as to when and where Betty York died, if she did, or whether or not she was taken in the ambulance to any place.

The next witness was Dr. Jones, who testified that he "* * * examined a body on the 19th day of December, 1945." He did not know Betty York during her lifetime. The body he examined was at Welch's Funeral Home. Being unable to locate a bullet, he had the body transferred to the hospital for an X-ray examination and there located a bullet which had entered the upper medial part of the thigh, puncturing a vein, and lodging at the hip bone on the opposite side of the leg. It had first passed through the arm. The bullet was recovered and produced in court.

In view of another trial, no further discussion is made of the question raised on the testimony of Dr. Jones. However, the importance of proving the corpus delicti will present itself to the court.

There are twenty-eight bills of exception in the record, about ten of which complain of arguments made by the District Attorney and his assistant. It will only be necessary to discuss Bill No. 26. Dr. Jones testified that there was an abrasion on the mouth of the deceased person whom he ...