Brewer v. State

167 S.W.2d 747, 145 Tex. Crim. 331, 1942 Tex. Crim. App. LEXIS 573

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 1942
• Docket: No. 22315
• Status: Published

Opinions

HAWKINS, Presiding Judge.

Conviction is for murder. This is the second appeal of this case, the defendant having been given ninety-nine years on his first trial which judgment and verdict was reversed because of an error in the court’s charge. The facts as set out in the court’s opinion reported in 157 S. W. (2d) 388 clearly present a brief resume of the facts proven at the second trial. As stated in our former opinion “The State’s case showed an unprovoked and unjustified killing.” The defendant was given thirteen years by the second jury on the trial of these facts and he now presents his appeal to this court on complained of errors alleged to have occurred in such second trial. Only three propositions covering five of his nine bills of exception and one of his approximately one hundred exceptions to the court’s charge are briefed and presented to this court.

Bill of exception number one relates to the court’s action in sustaining the State’s challenge to a venireman because he entertained conscientious scruples in regard to the infliction of the punishment of death for crime. There is incorporated in the bill by order of the court the question and answer investigation of the proposed juror, including his examination by the district attorney and by counsel for appellant; also by the court. It would be useless to set out at length such examination. The bill reflects a patient effort on the part of the court to ascertain the mind of the venireman towards the infliction of the death penalty. We conclude that the court was correct in holding that the proposed juror had conscientious scruples against such punishment. If the venireman’s examination disclosed that he himself was uncertain about the state of his mind upon the question the opinion in Sawyer v. State, 39 Tex. Cr. R. 557, throws light upon the proper course to be pursued by the trial judge.

It is claimed by counsel for appellant that in the bill the court certified to the qualification of the juror, hence certified error in sustaining the State’s challenge. Such position is based on the recital in the bill that among other veniremen “was one F. J. Dreer who was in all things qualified by law to serve as a juror on the trial in this cause.” Immediately following the recital is set out that: “During his voir dire examination * * * the following proceedings were had,” and here follows the long question and answer examination heretofore adverted to. Art. 612 C. C. P. sets forth certain questions to be propounded to prospective jurors by the court in “testing” their qualifications. If the questions are answered in the affirmative “the court shall hold him to be a qualified juror until the contrary be shown by further examination or other proof.” The recital upon which certification of error is predicated is nothing more, we take it, than the court saying that he held the juror qualified upon the preliminary examination provided for in Art. 612 C. C. P., and was passing him to counsel for acceptance on further examination.

Bills of exception numbers 4, seven, eight and nine in various forms relate to the same complaint, viz: that over appellant’s objection the State was permitted to prove that appellant had whipped his daughter because she was going with deceased. This fact was first developed from the witness Gatlin who detailed a conversation with appellant in which the latter told witness that his daughter had run away with deceased, and asked witness “What would you do when you find him? Would you just leave him lying where you found him?” It was in this conversation that appellant told witness that he had whipped his daughter for keeping company with deceased. Upon cross examination of the daughter the State elicited from her that appellant had objected to her going with deceased and had whipped her for so doing. Appellant objected to the development of this fact for various reasons, among them being that same was irrelevant and prejudicial, and was evidence of an extraneous offense for which no complaint had ever been filed against appellant, and that such evidence was not material to the matters in issue, and had no connection therewith, and was evidence of abuse of appellant’s daughter. In reply to appellant’s contention the State cites Art. 1257a P. C. which as here applicable reads as follows: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”

The evidence leaves no doubt of appellant’s serious objection to deceased paying attention to his daughter, appellant basing such objection on statements claimed to have been made to appellant by deceased regarding his improper relations with other girls. So serious were these objections that appellant’s daughter had been compelled to return some gift to her from deceased and she had been whipped for permitting deceased’s attention. There was no evidence introduced as to the extent of such whipping, nor as to how many times she had been whipped; indeed, upon inquiry by the State to the daughter as to how many times appellant had so whipped her, the court sustained appellant’s objection. The number nor details of such corrections were not developed. If the evidence had simply shown that appellant had at some time whipped his daughter independent of any connection of deceased therewith, or cause thereof, appellant’s objection would have found support in the cases cited to sustain his contention. Said authorities are Singletary v. State, 100 Tex. Cr. R. 399, 273 S. W. 593; Bryant v. State, 99 Tex. Cr. R. 600, 271 S. W. 610, and Browning v. State, 96 Tex. Cr. R. 103, 255 S. W. 1113. In none of these cases does the evidence held to have been improperly admitted throw any light upon the issues involved in such cases, but simply show acts of violence and abuse on accused’s part, having no connection with the matter under investigation. Not so here. There is no intimation that appellant whipped his daughter for any reason other than because she continued to associate with deceased. Proof of that incident, along with numerous threats towards deceased, were relevant facts showing the previous relationship between deceased and appellant, and the condition of appellant’s mind, and his feelings towards deceased at the time of the killing.

It is appellant’s further position that the court should have instructed the jury that violence used by appellant upon the person of his daughter in the exercise of moderate restraint or correction was not unlawful. Appellant raises the question by an objection to the court’s charge as not embracing therein such an instruction. Appellant bases his proposition on Subdivision 1 of Art. 1142 P. C. If appellant were being prosecuted for an assault upon his fifteen year old daughter such an instruction under certain facts would be pertinent. Proof of the whipping went into this case to show appellant’s feelings towards deceased. There is no intimation that they were immoderate. Evidence also went into the case of threats by appellant towards deceased, for the same purpose of showing feeling and malice. Art. 1265 P. C. provides that whoever seriously threatens to take the life of a human being or to inflict, upon him serious bodily injury shall be guilty of an offense, but Art. 1266 P. C. provides that to constitute the offense the threat must be seriously made, not a mere idle threat with no intention of executing it. Surely, it would not be- contended that because threats were proven the court should have charged the limitation found in Art. 1266. It appears that there would be as much basis for such a requested charge as for the one here urged.

The foregoing discussion disposes of all the questions briefed by appellant. Bills of exception numbers two, three, five and six, not urged in brief or in oral argument, have been considered, and are not thought to present error.

The court’s charge appears to have instructed the jury upon every possible phase of the case. Objections to the charge cover twenty-five pages of the transcript, and only one objection is urged in appellant’s brief or in oral argument. We discover no fault in the charge unless in some particulars it is more favorable to appellant than the law required.

The judgment is affirmed.