GRAVES, Presiding Judge.
Appellant was charged with having killed W. F. Edwards by shooting him with a gun on or about the 13th day of July, 1953, and upon his trial therefor he was assessed a penalty of life in the state penitentiary.
This cause went to trial on March 15, 1954.
The evidence shows that appellant was the proprietor of a hardware store and filling station called the Solo Serve Station in the town of Taft in San Patricio County; that the deceased was a man approximately 40 years of age and was the chief of police of the town of Taft; that as such officer he had at one time attempted to arrest the appellant for some infraction of the law and they had had a difficulty during which the deceased [212]*212pointed his pistol at the appellant. This was finally settled but left some evidence of unfriendliness between the two parties. On the night of the killing, which occurred after dark, a storm had put the street light of Taft out of commission, and the deceased had requested some of the places of business to keep their lights burning during the night. The testimony shows that the deceased, while riding on his motorcycle, approached the filling station wherein the appellant was seated and was immediately rebuffed by the appellant who ordered him to get away from there, or to use the words of the witness, “Get the hell out of here.” About that time appellant produced a pistol and fired four shots therefrom, all of them striking the deceased. One shot went through the chest, another hit him just back of the right armpit, another hit him in the back of the head, and the fourth shot struck him in the right hand. Three of the shots were doubtless fatal, and the deceased died therefrom within a few minutes.
Appellant took the witness stand and in his testimony recited certain actions of the deceased which indicated previous ill-will towards him, and claimed that at the time the deceased approached him on the night of the killing he (deceased) made an effort to pull his pistol and placed his hand upon it but never got it out of the scabbard. It is worthy of note herein that all the witnesses who saw the body of the deceased soon after the shooting testified that the pistol was still in the scabbard with some kind of a fastener over the handle of it.
The appellant’s plea of self-defense was offered before the-jury and rejected by them.
This appeal is based on certain bills of exception.
Bill No. 1 reflects that after the state had introduced all of its direct evidence and rested, the following proceedings were had: Troy Bone, was a witness for the state, but upon his cross-examination by the defendant, was asked if he knew that the deceased had killed a man in Brownsville, Texas, to which question the said witness answered as follows: “By hearsay, yes, sir.” He was then asked the further question:
“Did you consider, in making your answer to that question that while he was on the Police Force in Corpus Christi that he was with a man’s wife and her husband took a shot at him?”
This question was objected to as an improper one, and the court turned to the defendant’s attorney and said:
[213]*213“I have instructed you heretofore about that question and I am going to levy a fine of $25.00 against you for disobeying the instructions of the court.”
The record shows that the appellant’s attorney took no exception thereto but merely stated, “I will pay the fine.”
Soon thereafter appellant’s attorney moved the court to declare a mistrial of this cause on account of the facts above set forth, appellant contending that the action of the court in thus finding him was highly prejudicial to the rights of his client, and if the court desired to hold counsel in contempt for violating the ruling of the court, the jury should have been retired and such reprimand should have taken place outside of their hearing and presence.
This motion to declare a mistrial was overruled by the court, but the bill is qualified by the full proceedings relative to this occurrence and shows that previous thereto this matter was gone into outside of the presence of the jury and the court refused to allow the asking of such question because he did not think that an affair with a woman would have any bearing on the dangerous character of the deceased at the time of this fatal difficulty. The court at such time instructed counsel not to ask any questions that would require the witness to answer concerning this supposed escapade; that counsel, in disobedience to that order and ruling of the court, in the presence of the jury, subsequently violated the same by asking such question of the witness. Whereupon the court found that counsel was in contempt of court by asking such question, and a fine of $25.00 was levied against counsel. Counsel did not except to such action of the court, but merely stated that he would pay the fine. Upon further deliberation relative to this action upon the part of the court, the offending counsel moved the court to instruct the jury to disregard all matters with reference to the finding of counsel, and the state agreed to such request. However, upon mature thought, appellant’s counsel suggested that the harm and prejudice occasioned to the defendant’s rights could not be removed by an instruction and he, therefore, requested the court to withdraw his motion to instruct the jury to disregard this action and stated that he would except in advance to the action of the court in giving the jury any instruction relative thereto. The jury was then brought into court and the court stated to them as follows:
“Gentlemen of the jury, the action of the Court in holding [214]*214the defendant’s attorney in contempt and levying a fine against him — you are at this time instructed to disregard such action and not to consider it for any purpose whatever.”
Though it would have been the better practice to reprimand counsel and impose the fine in the absence of the jury, we think the court was correct in saying that the hearsay evidence about the deceased having been shot at by another person because he was with such person’s wife was correctly ruled by the court to have no bearing upon the character of the deceased for being a dangerous and violent man. Under the facts herein shown, we think the trial court was correct in attempting to enforce his orders and rulings during the trial. See 42 Texas Jur., p. 183, sec. 142.
Formal Bill of Exception No. 2 contains a many-page history of the progress of the trial of this case after the jury had returned its verdict and seems to be an effort to excuse the appellant for not having signed and sworn to his motion for new trial which was filed on April 16, 1954.
The appellant was represented in the trial of this case by the Honorable John J. Pichinson, the cause being tried on March 17, 1954. However, the Honorable Roy A. Scott appears as attorney for the appellant on this appeal. A motion is present herein on. the part of the state to strike the statement of facts and bills of exception from the record, it appearing from such instruments that they have not been signed by the attorneys for the state.
Bill No. 2 was an effort upon the part of the appellant’s attorneys to belatedly sign his motion for new trial and swear to the contents of said first amended motion for new trial.
Free access — add to your briefcase to read the full text and ask questions with AI
GRAVES, Presiding Judge.
Appellant was charged with having killed W. F. Edwards by shooting him with a gun on or about the 13th day of July, 1953, and upon his trial therefor he was assessed a penalty of life in the state penitentiary.
This cause went to trial on March 15, 1954.
The evidence shows that appellant was the proprietor of a hardware store and filling station called the Solo Serve Station in the town of Taft in San Patricio County; that the deceased was a man approximately 40 years of age and was the chief of police of the town of Taft; that as such officer he had at one time attempted to arrest the appellant for some infraction of the law and they had had a difficulty during which the deceased [212]*212pointed his pistol at the appellant. This was finally settled but left some evidence of unfriendliness between the two parties. On the night of the killing, which occurred after dark, a storm had put the street light of Taft out of commission, and the deceased had requested some of the places of business to keep their lights burning during the night. The testimony shows that the deceased, while riding on his motorcycle, approached the filling station wherein the appellant was seated and was immediately rebuffed by the appellant who ordered him to get away from there, or to use the words of the witness, “Get the hell out of here.” About that time appellant produced a pistol and fired four shots therefrom, all of them striking the deceased. One shot went through the chest, another hit him just back of the right armpit, another hit him in the back of the head, and the fourth shot struck him in the right hand. Three of the shots were doubtless fatal, and the deceased died therefrom within a few minutes.
Appellant took the witness stand and in his testimony recited certain actions of the deceased which indicated previous ill-will towards him, and claimed that at the time the deceased approached him on the night of the killing he (deceased) made an effort to pull his pistol and placed his hand upon it but never got it out of the scabbard. It is worthy of note herein that all the witnesses who saw the body of the deceased soon after the shooting testified that the pistol was still in the scabbard with some kind of a fastener over the handle of it.
The appellant’s plea of self-defense was offered before the-jury and rejected by them.
This appeal is based on certain bills of exception.
Bill No. 1 reflects that after the state had introduced all of its direct evidence and rested, the following proceedings were had: Troy Bone, was a witness for the state, but upon his cross-examination by the defendant, was asked if he knew that the deceased had killed a man in Brownsville, Texas, to which question the said witness answered as follows: “By hearsay, yes, sir.” He was then asked the further question:
“Did you consider, in making your answer to that question that while he was on the Police Force in Corpus Christi that he was with a man’s wife and her husband took a shot at him?”
This question was objected to as an improper one, and the court turned to the defendant’s attorney and said:
[213]*213“I have instructed you heretofore about that question and I am going to levy a fine of $25.00 against you for disobeying the instructions of the court.”
The record shows that the appellant’s attorney took no exception thereto but merely stated, “I will pay the fine.”
Soon thereafter appellant’s attorney moved the court to declare a mistrial of this cause on account of the facts above set forth, appellant contending that the action of the court in thus finding him was highly prejudicial to the rights of his client, and if the court desired to hold counsel in contempt for violating the ruling of the court, the jury should have been retired and such reprimand should have taken place outside of their hearing and presence.
This motion to declare a mistrial was overruled by the court, but the bill is qualified by the full proceedings relative to this occurrence and shows that previous thereto this matter was gone into outside of the presence of the jury and the court refused to allow the asking of such question because he did not think that an affair with a woman would have any bearing on the dangerous character of the deceased at the time of this fatal difficulty. The court at such time instructed counsel not to ask any questions that would require the witness to answer concerning this supposed escapade; that counsel, in disobedience to that order and ruling of the court, in the presence of the jury, subsequently violated the same by asking such question of the witness. Whereupon the court found that counsel was in contempt of court by asking such question, and a fine of $25.00 was levied against counsel. Counsel did not except to such action of the court, but merely stated that he would pay the fine. Upon further deliberation relative to this action upon the part of the court, the offending counsel moved the court to instruct the jury to disregard all matters with reference to the finding of counsel, and the state agreed to such request. However, upon mature thought, appellant’s counsel suggested that the harm and prejudice occasioned to the defendant’s rights could not be removed by an instruction and he, therefore, requested the court to withdraw his motion to instruct the jury to disregard this action and stated that he would except in advance to the action of the court in giving the jury any instruction relative thereto. The jury was then brought into court and the court stated to them as follows:
“Gentlemen of the jury, the action of the Court in holding [214]*214the defendant’s attorney in contempt and levying a fine against him — you are at this time instructed to disregard such action and not to consider it for any purpose whatever.”
Though it would have been the better practice to reprimand counsel and impose the fine in the absence of the jury, we think the court was correct in saying that the hearsay evidence about the deceased having been shot at by another person because he was with such person’s wife was correctly ruled by the court to have no bearing upon the character of the deceased for being a dangerous and violent man. Under the facts herein shown, we think the trial court was correct in attempting to enforce his orders and rulings during the trial. See 42 Texas Jur., p. 183, sec. 142.
Formal Bill of Exception No. 2 contains a many-page history of the progress of the trial of this case after the jury had returned its verdict and seems to be an effort to excuse the appellant for not having signed and sworn to his motion for new trial which was filed on April 16, 1954.
The appellant was represented in the trial of this case by the Honorable John J. Pichinson, the cause being tried on March 17, 1954. However, the Honorable Roy A. Scott appears as attorney for the appellant on this appeal. A motion is present herein on. the part of the state to strike the statement of facts and bills of exception from the record, it appearing from such instruments that they have not been signed by the attorneys for the state.
Bill No. 2 was an effort upon the part of the appellant’s attorneys to belatedly sign his motion for new trial and swear to the contents of said first amended motion for new trial. This matter was denied by the trial court as shown by the bill, and we find ourselves confronted with a motion upon the part óf the state to strike the statement of facts and also the bills of exception. It is shown by the statement of facts that this cause was tried and the verdict of the jury filed on March 19, 1954. A motion for new trial was filed by appellant’s then attorneys, Pichinson & Utter, on the same day on which the verdict was returned, but such motion was not sworn to by the appellant. An amended motion for new trial was filed on April 16, 1954, by the Honorable Roy A. Scott, and the same was not signed nor sworn to by the appellant. An amended motion, in addition to the first amended motion, was filed on May 5, 1954, and the same was signed by the appellant and sworn to by him. How[215]*215ever, this was some 46 days after the verdict of the jury was rendered. On May 5, 1954, the issue was joined relative to this motion for new trial and the matter was gone into in the presence of the court. However, the testimony produced on the hearing of such motion for new trial was reduced to writing by the court reporter and the same appears in the record. Such statement of facts is not signed by the attorneys for the state although the same has been approved by the district judge who tried the case.
This record reflects that appellant’s counsel did not secure leave of the court to file his first amended motion for new trial which was filed more than twenty days after the verdict of the jury. Appellant’s counsel offers as his excuse therefor that the appellant had been moved from the county jail in San Patricio County on April 16, 1954, and was in jail in Refugio County, but the fact still remains that no one swore to the first amended motion for new trial which was filed more than twenty days after the verdict and without leave of the court. Such amended motion for new trial was clearly an amendment to the first amended motion for new trial and was not authorized. Upon the hearing thereof the court refused to permit appellant’s counsel to amend his first amended motion for new trial on May 5, 1954. See Article 755, Vernon’s C.C.P., which provides that such motion “shall be determined by the court within twenty (20) days after the filing of the original or amended motion.”
This disposes of the only two formal bills of exception present in the record.
There are many informal bills of exception, none of which are presented to us in the brief and none of which seem to us to evidence any error.
. There are many requested charges, the major portion of them being incorporated in the court’s own language in his charge to the jury. In our opinion, the court correctly applied the law to the facts presented in this case and gave to the appellant in such charge every right to which he was entitled under the law.
In the motion for new trial herein appellant finally offers the proposition of the misconduct of the jury in that they heard other and further evidence while deliberating upon their verdict in this case. On the hearing of the motion there were twenty-eight affidavits presented in court. All eleven of the [216]*216twelve jurors testified by affidavit, and some of them filed two affidavits relative to the matter inquired about. It was shown that the jurors all voted for the guilt of the appellant, and that the only question upon which they further deliberated was as to the amount of the punishment to.be assessed. There were some of the jurors who were in favor of the death penalty and two or three of them were for fifty years in the penitentiary, but all of them seem to have unanimously agreed that the defendant should be put out of society for the remainder of his life. Eventually the question arose during their deliberation as to whether or not the defendant would be eligible for a parole and what would be the effect of the verdict of life in the state penitentiary. This was discussed at length by some of the jurors but all of them seem to be without knowledge of this matter. It was finally dropped by them in their discussion, and those who were for a lesser penalty finally came up for a life punishment, and those who were for a greater penalty finally agreed to a life penalty. When they returned their verdict into open court, they were polled by the court and asked if such was their verdict, and each of them said that it was.
We are favored with a brief which emphasizes the question of the alleged error on the part of the jury in that while deliberating upon the verdict they heard evidence other than that which was adduced upon the trial. It is noted from the statement of facts that on the hearing of the motion for new trial there was no affidavit of any kind attached thereto relative to any misconduct of the jury but, as frequently denominated by the trial court, it seems that a “fishing expedition” was engaged in for the purpose of developing misconduct, if such there could be found.
It is also noted that appellant placed two of the jurors upon the witness stand in an effort to evidence misconduct upon their ■ part. Their testimony but confirms the statement above made as to their attitude while deliberating; that all of them unanimously agreed that the defendant should be put out of society for the balance of his life, and that their decision eventually resulted in the life penalty found herein. His eligibility for parole was discussed among them, but seems to have had no effect nor answer upon their part and was finally abandoned.
After the defendant had rested in this matter, the state placed all of the remaining jurors, except one, upon the witness stand, and we also find in the statement of facts many affidavits, some of the jurors having filed two affidavits, but all of them [217]*217bearing practically the same ideas set forth therein, and they being in consonance with the statement made above in this opinion as to how they arrived at their verdict.
This same question has recently been passed upon by this court in the opinion on motion for rehearing in Cause No. 26,986, Agnes Watson v. State, (page 5, this volume), 273 S.W. 2d 879.
We are of the opinion that there was no error shown in the trial of this case nor in the overruling of the motion for new trial herein.
Under the circumstances, we think the judgment of the trial court should be affirmed, and it is so ordered.