Lawler v. State

9 S.W.2d 259, 110 Tex. Crim. 460, 1928 Tex. Crim. App. LEXIS 634

Opinions

CHRISTIAN, Judge.

The offense is murder; the punishment confinement in the penitentiary for 45 years.

Appellant was the son-in-law of Tom Motley, the deceased. In December, 1926, appellant, his wife and three small children were living together. Some time during the month of December, while appellant was away from home, Beulah Lawler, his wife, went to Oklahoma in a stolen car with a man by the name of Bill Hickman. The children of appellant and his wife were left with appellant’s parents. About December 18th, appellant’s wife returned to Texas and went to the home of her father, the deceased, where she rer mained. In the meantime, Hickman had been indicted in Navarro county on a charge of automobile theft and his trial set at Corsicana for February 8th, 1927. Appellant made numerous visits to the home of deceased in an effort to see and talk to his wife. Generally, he stopped in the road two or three hundred yards from the house of deceased, and on several occasions he carried other parties with him, who, acting in his behalf, went to the house of deceased in an effort to bring about a meeting between appellant and his wife. Deceased was generally at home on the occasion of these visits, and there was always present a gun above the front door. On the 30th of January, 1927, at about seven o’clock p. m., deceased, Mrs. Motley, his wife, and a small child were sitting in what was termed the fireplace room of their residence when appellant appeared, a difficulty ensued and deceased was fatally wounded. On the occasion of the homicide deceased owned a Winchester rifle and a 32 calibre pistol, while appellant carried a 45 calibre pistol. Deceased received two wounds in the body, which were not fatal, and a wound in the head from a 32 calibre pistol, which resulted in death. Appellant received a wound in the body.

The state’s version of the homicide was, in substance, as follows: On the night of the 30th of January, 1927, appellant went to the home of deceased, broke into the house and shot deceased. After appellant had fired three shots at deceased, Mrs. Motley, wife of deceased, who was in the room at the time, ran across the highway to a neighbor’s house, which was a short distance from her home. As she was returning, appellant, who had been wounded and was lying near the highway, said: “The old man is dead, if he ain’t he will be in a few minutes, for I shot him in the head with his own gun.” Entering the room where the shooting had taken place, Mrs. Motley found her husband sitting by the fireplace fatally wounded. His face was black and covered with blood, and there were pools of blood on the floor. In this situation her husband said, “He got me.” Deceased later died from the wound he had received in the head.

Appellant’s testimony concerning the immediate transaction which resulted in the homicide was, in substance, as follows: On the occasion of the homicide, appellant went to the home of deceased for the purpose of requesting his (appellant’s) wife to leave the country with him, in order that their children might escape the shame and disgrace that would result from her appearance as a witness in the Hickman trial. When he reached the home of deceased he knocked on the door, accused asked him who was there and he told deceased that it was Bill. Deceased then opened the door and pointed a gun at appellant. Appellant grasped the gun, and deceased shot him. As he shot appellant, deceased closed the door. Appellant fell against the door and pushed it open. As the door opened, appellant pulled his pistol and grasped the pistol of deceased with his left hand. A scuffle ensued, in which appellant twisted the arm of deceased in a manner that placed the pistol of deceased against the head of deceased, and in such position the gun was accidentally fired. Deceased fell over a chair and, as he was endeavoring to get up, he pointed his pistol at appellant. Appellant struck deceased on the head with a Winchester, which belonged to deceased, and deceased dropped his pistol. Appellant didn’t fire his pistol until deceased had shot him. When appellant fired at deceased he was frightened and thought deceased was going to shoot him again.

Appellant’s position that the court should have charged the law applicable to circumstantial evidence is not tenable. In view of the fact that appellant admitted that he shot deceased, the charge against him did not depend wholly upon circumstantial evidence. A charge on circumstantial evidence is not required where the testimony is not wholly circumstantial. Branch’s Annotated Penal Code, Section 1874; High v. State, 112 S. W. 939.

In support of his theory that he went to the home of deceased for the purpose of requesting his wife to leave the country with him, in order that their children might escape the shame and disgrace that would result from her appearance as a witness in the Hickman trial, appellant offered to prove by his father that he, appellant, was kind and affectionate toward his children and desired that they be held in high esteem by their friends, neighbors and the public generally. The qualification attached to bill of exception Number 17 shows that the witness testified that appellant was a very devoted father to his children, and that prior to the homicide appellant appeared to be greatly worried. In this condition, the bill fails to manifest reversible error.

Appellant offered to prove by Dr. Hill, oné of his witnesses, that, after the fatal shooting and after he had reached the home of his father at Dawson, he described the difficulty, which resulted in the fatal shooting, to the witness and others. Bill of exception Number 19 shows that the witness would have detailed the statements made to him by appellant, substantially, as testified to by appellant on his trial. Appellant contends that the statements were res gestae, and consistent with his testimony on the trial and explanatory of the statements attributed to him by Mrs. Motley while he was lying near the highway. The qualification attached to the bill shows that no witness testified, as shown in the bill, that the statements were made by appellant about forty-five minutes after 'the shooting; that the testimony of Mrs. Motley showed that she was in the room with deceased at the time that appellant entered and, that after appellant had fired three shots, she left the room and went to the home of Mr. Priddy, which was about two hundred yards from where the difficulty occurred; that a short while after reaching the home of Priddy she went back to her home; that Priddy after hearing the shots, called three doctors over the telephone and then went to the point where appellant was lying on the highway; that it was approximately twenty minutes after the witness heard the shots before he went to the point where appellant was found; that, after finding appellant, Priddy went home and shortly thereafter came back to appellant; that when he returned, one Barrington took charge of appellant and carried him to the town of Hubbard, and then to the home of appellant’s father in Dawson; that it was about three and a half miles from the home of deceased to Hubbard, and six miles from Hubbard to Dawson; that the record does not show how far it was from the home of Doctor Hill to the house of the father of appellant, and does not show when Doctor Hill was called to said house. As qualified, the bill fails to show that the statements attributed to appellant were res gestae. The statements made by appellant to Mrs. Motley were res gestae and did not in contemplation of law constitute detailed declarations of appellant. Proof by the state of res gestae statements of the accused does not, within itself, afford a predicate for the introduction of self-deserving declarations. The statement made by appellant to Mrs. Motley was full and complete. Gibson v. State, 5 S. W. 314. Where the previous acts or declarations which are sought to be explained are full and complete proof of prior or later acts or declarations is not rendered admissible on the sole ground that the former were admitted in evidence. Branch’s Annotated Penal Code, Section 92; Atkinson v. State, 30 S. W. 64.

Bill of exception Number 8 presents the following occurrence: Mrs. Motley, wife of deceased, testified that on an occasion when certain parties came to her home at the behest of appellant, Beulah Lawler, the wife of appellant, stated to them, in substance, in the absence of appellant that she was done with appellant forever, that she didn’t want to talk to him, and that if appellant carried her away from there he would carry her in a black box. The qualification attached to the bill shows that, on cross-examination, appellant elicited from Mrs. Motley the fact that said parties stated to appellant’s wife that appellant wanted to talk to her; that on redirect examination the state asked Mrs. Motley what reply appellant’s wife made to said parties; and that when she gave the testimony complained of in response to the state’s question, the court instructed the jury not to consider such testimony. In this condition the bill fails to manifest reversible error.

Mrs. Motley, was permitted to testify, over objection of appellant, that deceased stated to a Mr. Zennan, in the absence of appellant, that he, deceased, had nothing to do with the matter of his daughter talking to appellant, and that he had no objection to her doing so, if she so desired. In qualifying bill Number 11, the court states that the record shows that deceased made substantially the same statement to appellant on several occasions. Although the testimony complained of was hearsay, in view of the fact that the same testimony appears in the record, without objection, reversible error is not manifested by the bill.

Mrs. Motley, a witness for the state, testified, on redirect examination that prior to the homicide appellant’s wife stated to appellant that he “had trapped her all he was going to”; that, in substance, she 'would give him a divorce and let him take the children or she would take them; that she never expected to live with him again; that he had mistreated her and “beat her up”; and if he ever took her away from her father’s home it would be in a “black box.” Appellant, as shown by his bill of exception Number 13, moved to exclude this testimony on the ground that the statements were violative of the statute which prohibited the wife fróm testifying against her husband. The statements were made in the presence of Mrs. Motley. Being made in the presence of a third party they ceased to be privileged. Statements made by the husband and wife in the presence of others do not come within the rule of privileged communications. Mrs. Motley was properly permitted to testify to the statements as against the objection lodged by appellant. Prater v. State, 284 S. W. 965; Gilmore v. State, 241 S. W. 492; Glasser v. State, 233 S. W. 969; Cole v. State, 101 S. W. 218.

Bill of exception Number 36 shows that the state proved by appellant on cross-examination that about two hours before the homicide he engaged in a “crap” game. Appellant’s objection to the testimony was that it was proof of “an additional and extraneous offense and collateral crime and matter,” and that it was prejudicial. We are unable to determine from the bill whether the matter inquired about by the state was material and relevant to any issue in the case. There being no facts stated in the bill which affirmatively show that the testimony was hot relevant and material, we must indulge the legal presumption that the ruling of the trial court in admitting the testimony was correct.

As shown by bill of exception Number 37, for the purpose of rebutting the inference that his wife had left him because he had mistreated her, appellant offered in evidence a letter written by his wife to Bill Hickman, which tended to show that there was an illicit love affair between her and Hickman. Hickman and appellant’s wife were not used as witnesses. As a predicate for the introduction of the letter, appellant identified the handwriting and signature of his wife, and testified that Hickman had delivered the letter in question to him. The bill does not show whether the letter was delivered to appellant before or after the homicide. The state objected to the introduction of the letter on the ground that it was “immaterial and hearsay, and had no bearing upon any issue in the case, and was an attempt to bring in an extraneous and immaterial matter occurring between the wife of the defendant and Bill Hickman, concerning which the deceased, Motley, is not shown to have any connection whatever, and because the statement being in the form of a letter was hearsay and inadmissible as such.” The trial court sustained the objection and qualified appellant’s bill by referring to the statement of facts to show that after appellant had asked Mrs. Motley, on cross-examination, about a visit of appellant to the home of deceased in which appellant asked his (appellant’s) wife to talk to him, the state asked said witness, on redirect examination, as tp the statements made by appellant’s wife to him on the occasion in question.

The contents of .the letter were hearsay and, therefore, inadmissible.

We have carefully examined every contention made by appellant and find no error.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.