Allen v. State

333 S.W.2d 855, 169 Tex. Crim. 318, 1960 Tex. Crim. App. LEXIS 2929

• Court: Court of Criminal Appeals of Texas
• Decided: February 24, 1960
• Docket: 31218
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is murder; the punishment, twenty-five years.

The state’s case showed an unprovoked killing of a stranger in a beer tavern.

The defense was that appellant was in a state of insulin shock, knew nothing of what transpired, and was therefore not criminally responsible for what occurred.

The facts were fully developed, and appellant’s defense was ably presented. Some thirty-two witnesses testified, two of whom were physicians, and the jury resolved the conflict in the evidence against the appellant. We find the evidence sufficient to support its verdict.

We shall discuss the contentions advanced by brief and argument.

It is first contended that the trial court erred in changing the venue on his own motion from Tom Green County, where the homicide occurred, to Nolan County in an adjoining judicial district.

The court’s order tracked the statute (Article 560, V.A.C.C.P.) and recited that it appeared to the satisfaction of the court that a trial, alike fair and impartial to the accused and to the state, could not be had because of the widespread publicity given the case both at the time of the commission of the offense and upon two former trials, both of which resulted in mistrials, at which 600 veniremen had been summoned and that such proceedings had been the topic of wide discussion throughout the county.

Appellant seems to recognize that the responsibility rested upon him to demonstrate that the court abused its discretion by acting arbitrarily and without legal cause, as the rule is announced in Norwood v. State, 116 Tex. Cr. Rep. 283, 34 S. W. 2d 590, which was affirmed and upon which he relies. In order to prove such abuse of discretion, he offered no proof but relies upon a stipulation which was entered into between the state and appellant and certified by the court. Such stipulation recited that the case had twice been tried in Tom Green County, both of which trials resulted in hung juries; that it had required less than four days to select each jury; that neither the state nor the appellant had exercised all their peremptory challenges; that each jury was discharged after 30 hours deliberation; and that the Tom Green County jury wheel contained the names of 10,000 qualified jurors. The court observed in Norwood that they were aware of no case which had been reversed because of an abuse of discretion under Article 560, supra. Only recently the writer had occasion to dissent in such a case (Rogers v. State, 168 Tex. Cr. Rep. 148, 324 S. W. 2d 10), but such dissent was directed to the county to which the case was sent and not to the action of the court in changing the venue. Since Norwood was decided in 1930 we are also unable to find a case which would be authority to reverse the instant case. Rather than demonstrating an abuse of discretion, as appellant contends, we have concluded that the stipulations serve to fortify the conclusions reached by the trial court in his order changing the venue.

We find nothing in Henderson v. State, 104 Tex. Cr. Rep. 493, 283 S. W. 497, which was also affirmed and upon which appellant also relies, contrary to the conclusion we here reach that no abuse of discretion has been shown.

It is next contended that the trial court erred in not declaring a mistrial when it was learned that during the selection of the jury five of the jurors who had then been selected, in company with a deputy sheriff, viewed the motion picture “The Ten Commandments.”

Reliance is had upon Norwood v. State, 120 Tex. Cr. Rep. 510, 48 S. W. 2d 276, which has not been cited by this court since it was decided in 1932. However, the facts in Norwood are far stronger than in the case at bar. There it was shown that the film which was viewed by the jury dealt with illicit sexual relations and that the case then on trial was for rape. No witness testified as to what was portrayed in the motion picture viewed by the jurors, and we cannot take judicial knowledge of such matters. So then this case falls into the category of cases which hold that it is not reversible error per se for the sheriff having charge of the jury in a homicide case to take the jury to a picture show at night during the progress of the trial. See 33 A.L.R. 2d 850n and the cases there cited. Brown v. State, 167 Tex. Cr. Rep. 351, 320 S. W. 2d 670.

Appellant next contends that the court erred in failing to apply the law to the facts in submitting the offense of murder without malice. Reliance is had upon Youngblood v. State, 121 Tex. Cr. Rep. 465, 50 S. W. 2d 315; Butler v. State, 121 Tex. Cr. Rep. 288, 51 S. W. 2d 384; and Privett v. State, 123 Tex. Cr. Rep. 86, 57 S. W. 2d 1102. It should be noted that each of these cases was decided shortly after the amendments of Article 1257c, V.A.P.C., in 1927 and 1931.

In Beamon v. State, 133 Tex. Cr. Rep. 283, 109 S. W. 2d 1069, in discussing the same question, this court said that the following charge was sufficient:

“You are further charged that even though you should find the defendant guilty of murder, beyond a reasonable doubt, unless you find from all the facts and circumstances in evidence in this case, beyond a reasonable doubt, that the defendant, in killing the deceased, if he did, was prompted and acted with his malice aforethought, as the same is hereinbefore defined, then you cannot assess any punishment for any term of years longer than five.”

Still later, in Weems v. State, 148 Tex. Cr. Rep. 154, 185 S. W. 2d 431, this court said:

“Appellant reserved an exception to the charge of the court submitting murder without malice, claiming that same did not affirmatively apply the law to the facts in evidence. The charge given follows in exact language the charge that was approved against the same objection in Beamon v. State, 133 Tex. Cr. R. 283, 109 S.W. 2d 1069.

“While we think it preferable that in submitting murder without malice the charge follow that as suggested in the Butler, Hettich, and Stapp cases, supra, yet the language there employed is, nevertheless, by no means to be exclusive, for as we said in Butler’s case, we did not intend to there ‘lay down a form’ to be followed, ‘but to call attention to what appears to be a necessary interpretation’ of Art. 1257c, Vernon’s Ann. P. C. In approving the charge in Beamon’s case, we pointed out wherein the charge was deemed a sufficient application of the law. Such is also true in the instant case.”

The charge before us here is substantially the same as the one found in Beamon, Weems, and Pugh v. State, 148 Tex. Cr. Rep. 277, 186 S. W. 2d 258. Under the facts before us here, we find the same to be sufficient.

There was no evidence that appellant acted under the immediate influence of sudden passion arising from an adequate cause. He testified that he remembered nothing which occurred. The state’s evidence was that he became angry when a chair was moved and he fell to the floor, but the killing did not occur until five or ten minutes later. In the meantime, he had left the building, and when he returned he fired the shots without further provocation.

Finding no reversible error, the judgment of the trial court is affirmed.