Hagans v. State

372 S.W.2d 946, 1962 Tex. Crim. App. LEXIS 790

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1962
• Docket: 34125
• Status: Published

Opinions

BELCHER, Commissioner.

The appellant, Edward Otho Hagans, and Elsie Marie Hagans, alias Elsie Marie Milner, were jointly indicted and tried for the murder of Zoura F. Hagans. Upon conviction, the death penalty was assessed against the appellant (life imprisonment was assessed against his companion) and he alone appeals.

The evidence introduced by the state reveals that the appellant is guilty of the violent, cruel and brutal murder of Zoura F. Hagans by beating her with some unknown instrument and by shooting her with a pistol. The voluntary written statements made and signed by the appellant and his companion were introduced in evidence by the state without objection and they show a killing without justification; and said statements were sufficiently corroborated.

Appellant did not testify but called numerous witnesses including three medical doctors, one of whom was a psychiatrist, and by their testimony he sought to support his plea of insanity at the time of the commission of the offense and at the time of trial.

The jury resolved the issues of insanity against the appellant and the evidence is sufficient to support their verdict.

Appellant contends that the trial court erred in overruling his motion for a change of venue which alleged that there existed in Nacogdoches County so great a prejudice against him that he could not obtain a fair and impartial trial. The motion was supported by the affidavits of an owner of a local radio station and two local attorneys.

Upon the hearing of the motion two of the three affiants, the publisher of the local daily and weekly newspapers, another local attorney and the other radio station owner testified that extensive coverage and publicity had been given the crime, the return and subsequent confessions of the appellant and his companion.

Two local attorneys testified that the case had received more publicity in the county than any other one, that the facts of the case had been discussed in every section of the county, that in their opinion public sentiment and prejudice was against appellant, and the case had been already prejudiced by the people against him, and that he could not get a fair and impartial trial in Nacogdoches County. The owner of one of the local radio stations testified that in his opinion the case had been widely publicized and pretty well discussed, that public sentiment was against “them”, and the majority of the persons he had heard ■discuss the crime were “adverse toward the defendants” and “a lot of people say they .are guilty” but “If you can qualify them (jurors) I think they would give a fair trial.”

The owner of the other radio station ■gave substantially the same testimony as that of his competitor. The publisher testified that the case had been widely discussed, and those who had not heard about it would be in the minority, but that he had no definite opinion on whether appellant ■could get a fair and impartial trial.

The state called four persons as witnesses, the appraiser and collector of a hank, the owner and operator of a cafe, a ■service station operator and the county surveyor, and each expressed the opinion that appellant could get a fair and impartial trial in Nacogdoches County.

At the conclusion of the voir dire examination of sixty-eight veniremen eight jurors had been selected. Then appellant again submitted his original motion for a change of venue. In support thereof he called. Jack Pierce, the attorney for appellant’s companion. He testified that of the eight jurors chosen four stated that they had some sort of opinion as to the guilt or innocence of the defendants; that the judge questioned each of the four above referred to by Pierce and they stated that they could lay aside any opinion that they might have and try the case strictly upon the evidence in accordance with the law in the court’s charge; and that they had no bias or prejudice against the defendants.

It is evident that the trial judge was in a position to appraise and determine the examination of all the jurors that Pierce testified about on renewal of the motion. No statement of facts showing the voir dire examination of the venire accompanies the record. The defendants had exhausted eleven peremptory challenges when the eighth juror was chosen. The record docs not reveal whether all of the defendants’ peremptory challenges had been exercised when the jury was completed, nor does it reveal that any objectionable juror served.

The record before this Court shows no abuse of discretion by the trial court in refusing to grant appellant’s motion for a change of venue. McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Tyler v. State, 163 Tex.Cr.R. 441. 293 S.W.2d 775; Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661; Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873.

By several formal bills of exception filed with the clerk of the trial court the appellant urged that reversible error had been committed. These bills were refused and returned by the trial court for the reasons noted thereon within the time allowed by statute. No further action pertaining to said bills is shown by the record. Therefore, they' cannot be considered. Beale v. State, 171 Tex.Cr.R. 319, 350 S.W. 2d 207; Campos v. State, Tex.Cr.App., 356 S.W.2d 317. However, these bills have been examined and it is concluded that they do not present error.

The complaints of the court’s action in overruling the objections to the charge cannot be considered because no exception was reserved thereto. Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Redman v. State, 162 Tex.Cr.R. 524, 287 S.W.2d 676; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291; Stone v. State, 171 Tex. Cr.R. 201, 346 S.W.2d 323; Medlock v. State, Tex.Cr.App., 356 S.W.2d 312.

The other contentions presented have been considered and do not show error.

The judgment is affirmed.

Opinion approved by the Court.