Craig v. State

331 S.W.2d 925, 169 Tex. Crim. 23, 1959 Tex. Crim. App. LEXIS 2685

Opinions

MORRISON, Presiding Judge.

The offense is murder; the punishment, fifty years.

In view of our disposition of this case a recitation of the facts will not be necessary. There were no witnesses, save the appellant, to the shooting and his defense was that his wife’s death was the result of an accident.

The state’s principal witness, Ranger Dudley White, testified while the prosecution was making out its case in chief that in the course of his investigation of the shooting he talked to the appellant on several occasions. During his examination by the district attorney the following transpired:

“Q. When you talked to him in Elgin on or about October 18, 1957, did this defendant make any statement to you, not in response to any questions you may have asked him? A. He did.

“Q. Tell the jury just what conversation took place between you and this defendant, starting with any statement he voluntarily made not in response to any question. A. This was at the time that the sheriff and I were talking to him in Elgin, Texas, on or about October 18. At that time he agreed to, as I stated a while ago, come to Austin and help us—I will put it that way—help us to eliminate him on all this that it looked like he might be mixed up in, but at this particular time he refused, said he changed his mind. He further stated, he said, ‘You know what they are saying at this time?’

I said, ‘No, I have no idea. What is it?’

He said, ‘They are accusing me here in Elgin of killing my first wife.’

I said, ‘Oh, the heck you say!’

“MR. JONES: I am going to object to that. It is completely immaterial, Your Honor. It has no place in this case.

“THE COURT: Objection overruled.

“MR. JONES: Note our exception.

“A. And he said, ‘Suppose that they do dig her up and find poison in her, that doesn’t mean that I did it.’

“MR. JONES: I want to renew my objection. It has no place in this case.

“THE COURT: Objection overruled.

“MR. JONES: Note our exception.

“A. I says, ‘Well, that is right, that will have to be investigated. We haven’t made any investigation as to that at this time, in reference to your first wife.’

“MR. BARBER: In view of defendant’s objection, the State feels that it is proper testimony, but the State will agree to withdraw it.

“MR. JONES: I don’t agree to have it withdrawn.

“MR. BARBER: Then the State would like for it to stay.

“MR. JONES: I will press my bill against it.

In view of the statement made by appellant’s counsel, we will view the same as if the testimony had been withdrawn. We are confronted, however, with the rule that if the evidence is obviously hurtful and not admissible for any purpose, then the error in its admission will not be cured by a withdrawal. 1 Branch Ann. P.C. 2d ed., sec. 403, p. 424; Ulmer v. State, 106 Tex. Cr. Rep. 349, 292 S.W. 245; 5 Tex. Juris 2d, sec. 443, p. 695.

Here we have an accused on trial for killing his wife, the state’s case is purely circumstantial and rests on the proof of contradictory statements made by the accused after the death of his wife, and the state introduces evidence that appellant was not only apprehensive about the charge for which he is being tried but also fears that he will be investigated and prosecuted for another and distinct act of wife killing.

“The general rule in all English-speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex. Cr. Rep. 164, 261 S.W. 2d 836.

There is no question in the writer’s mind but that the prosecutor knew at the time he propounded the question set forth above just what answer he would receive and that it would constitute evidence to be utilized by the jury in reaching tne conclusion that appellant was in the habit of killing his wives.

For the error pointed out, the judgement is reversed and the cause is remanded.