Parks v. State

63 S.W.2d 301, 124 Tex. Crim. 405, 1933 Tex. Crim. App. LEXIS 482

• Court: Court of Criminal Appeals of Texas
• Decided: May 24, 1933
• Docket: No. 16004
• Status: Published

Opinions

LATTIMORE, Judge.

Conviction for murder; punishment, confinement in the penitentiary for twenty-five years.

Appellant stands convicted of drowning his wife in Lake Trammell near Sweetwater, Texas, on July 8, 1932. Some time during the year 1929 appellant met Fay Condit, a prostitute living at Hazel Wood’s place in the town of Sweetwater. From then until the death of his wife Fay Condit was appellant’s paramour. In September, 1931, Fay Condit left Hazel’s place and took up her residence in a hotel in Sweetwater, where she lived until June, 1932. During her stay at the hotel, she bought an automobile, appellant furnishing money to pay some of the installments on the car. Appellant paid her room rent and board, and bought her an insurance policy. Apparently he furnished her money whenever she asked for it. At times she went to her home in Oklahoma, and, on these occasions, appellant gave her money. She and appellant consistently corresponded with each other. All of the testimony on the part of the state reveals a growing infatuation on the part of appellant for Fay Condit.

At the time of the death of his wife appellant was in need of money. He was working on a commission basis for the Dr. Pepper Company, earning from twenty-five to forty dollars per week, and had only been employed by the company for four months. During that four months he had gotten behind with his employer approximately $235.00, which amount he was unable to pay. A loan on his home was delinquent. Notwithstanding his bad financial condition, between June 3, 1932, and July 2nd of the same year, appellant took out in various mutual insurance associations policies aggregating $14,000 on the life of his wife, payable to himself as beneficiary. Prior to securing these policies, appellant had policies on the life of his wife aggregating $4,000. None of the companies required a medical examination. According to the state’s testimony, appellant signed his wife’s name to all of the applications for insurance. Prior to taking out these insurance policies, appellant wrote two letters to insurance association^. In one of these letters he made the statement that he and his wife had been forced to give up some old line insurance. In addition to the policies carried on the life of his wife, appellant carried insurance upon himself and children. One of the policies on his own life was payable to Fay Condit.

On June 29, 1932, Fay Condit left Sweetwater and went to Oklahoma, appellant furnishing her the money for the trip. She was in Oklahoma at the time appellant’s wife was drowned. On July 7, 1932, appellant took his wife and children fishing. On this occasion they visited several places on Lake Trammell, but caught no fish. On the next day, only six days after appellant had taken out the last policy on the life of his wife, he, his wife and two little girls again drove to Lake Trammell. After stopping at the lake house to borrow some poles and secure bait, appellant drove his car directly to the scene of the drowning, a place two and one-half miles up the lake, over a road shown by testimony to be difficult to travel. The car was left about 330 feet from the point where his wife was drowned; the state’s testimony being to the effect that the car could have been driven nearer said point. The point to which appellant and deceased went could not be seen from the car. Appellant and deceased told their two small children to remain at the car, as it was too warm for them to fish.

Touching the circumstances immediately attendant upon the drowning, appellant’s nine year old daughter (being the older of the two children) testified that she and her little sister did not go down to the lake to fish. She said that while they were sitting in the car she heard a splashing in the water and heard their mother scream; that their father was down at the lake with their mother at the time they heard this splashing; that they jumped out of the car and ran down there; that when they got down there they saw their mother in the water; and she was trying to get out; that she cried “Help” twice; that they could see their mother plainly and could also see their father; that he was standing there; that when they heard the splashing in the water their father was down at the lake where their mother was; that he did not jump in the water; that they left their mother and went with their father to get help. On cross-examination the little girl testified, in answer to leading questions, that her father was within five feet of the car where she and her sister were sitting when they heard the splashing. Upon both direct and cross-examination, however, she maintained that she saw her mother in the water struggling and crying for help.

Leaving the scene of the drowning, appellant drove his automobile past the home of one Tebe Scott, which was only 150 yards from the road which he was traveling, and only about half a mile from the scene of the drowning; the house being ..in plain view of the road. In front of the house was a field, which was in plain view, and in this field three men were working. Instead of stopping at this house, appellant drove approximately another half a mile to a point on the lake where he found Harold Reid and Archie Wright fishing, and there he first made known to outsiders the fact that his wife was in the water. Appellant appeared to be excited. Leaving his two little girls with Archie Wright, with instructions to take them to the lake-house, appellant took Reid to the scene of the drowning, he driving the car. He drove approximately 25 miles an hour, notwithstanding the fact that it was possible to drive faster by slowing down at rough places. On the way back to the scene of the drowning appellant told Reid that his wife had fallen into the deep water. When they got to the place he pointed out the place where his wife had fallen in. A fishing pole with a line on it was out in the water at this point. A fishing pole was on the bank back of the place where his wife had been fishing. Appellant told Reid that he could not swim. On the trial, every witness testifying concerning appellant’s ability in this regard said that he could swim; one of the witnesses testifying that he had seen appellant swim across a tank, and had seen him swim in water over his head. Some of the witnesses for appellant, although admitting that he could swim, said he was a poor swimmer. After reaching the scene of the drowning, appellant told Reid that he was going into the water after his wife. Believing appellant could not swim, Reid became excited and insisted that appellant stay out of the water. Reid weighed 150 pounds and appellant was a large man, being over six feet tall and weighing about 200 pounds. Reid prevented appellant from going into the water. In one of the leading questions propounded to the little daughter of appellant, counsel for appellant elicited the fact that appellant reached out his hand toward her mother when she was in the water. This was the only evidence that appellant made any effort to rescue his wife.

Appellant told Reid that he had left his wife fishing and started back to the car to fix the children’s poles up so they could fish; that one of the little girls had started down to the lake when she heard her mother scream; that when he ran to the lake his wife was gone; that all he could see was bubbles. The uncontroverted evidence was to the effect that the two fishing poles, which were left at the car for the children already had lines rigged up on them and wound around the poles. Witness McBurnett testified that appellant said to him: “He was down the lake a little ways seeing about some poles that he had set out there, — he said he heard a scream and ran back up there and when he got there all he could see was some bubbles.” A physician testified that appellant said: “He was back up to his car helping the children fix up some fishing poles at the time she fell in, * * * He told me that the children had heard their mother scream, but that he had not heard her; he said they rushed down to the water and found no trace of her.” The witness Scott testified to appellant’s declaration to him, as follows : “He said she was fishing right here and pointed out the place to me * * *. He said he went up to the car and when he returned he couldn’t see nothing of her. All I could see was her fishing pole, he said, and that was all I could see.” These self-conflicting statements of appellant were also in direct conflict with the testimony of his little daughter. The body of appellant’s wife was found at the spot where he said it would be found.

After the body of deceased had been taken from the water, appellant asked: “How long can a body stay in the water and still be revived ?” He also asked the attending physician if there was any chance of reviving his wife. The reply was that there was no particular time for “quiting” drowning cases. Appellant then told the doctor to use his own judgment as to when to stop his efforts to restore life. After the body had been removed from the water appellant did not go near it. On the way back to town he passed the lake-house where his two little girls were staying, but did not go in to comfort them and did not visit them until about ten o’clock the next morning, when they were brought to his home. On the day after his wife was buried, appellant wrote a letter to Fay Condit, which was in part as follows: “Of course I am so lonely for you today. * * * There are so many things that I need to discuss with you, sweet. I need your advice which I know you would give so willingly. When I see you I want you to tell me everything as you see it. After I tell you plans for the future * * * Hugs and kisses a gillion. Your Luke.” While being questioned by the district attorney concerning the drowning of his wife, appellant attempted to destroy a love letter he had received from Fay Condit.

Appellant did not testify in his own behalf, but introduced witnesses who testified that his wife was subject to dizzy spells, thus suggesting that deceased had accidentally fallen into the water and drowned. He also introduced witnesses who testified that, on the day of the drowning, appellant had asked them to go fishing with his wife and him.

In rebuttal the state offered proof to the effect that the location at which deceased was fishing was not a dangerous one. There was an underwater ledge at said point where deceased was fishing. At its narrowest point this ledge was approximately 3.8 feet wide and at its widest point about 5 feet wide. One could wade out on this ledge, the proof being to the effect that one falling from the knoll where deceased was fishing would have first fallen on the ledge. The body of deceased was in the deep water beyond the ledge. The position of the state, given support by the circumstances, was that it would have been necessary to have leaped out over the underwater ledge, or have been pushed over it, in order to reach the place in the deep water where the body of deceased was recovered. Appellant meets this with the proposition that one drowning would more than likely flounder into the deep water.

It is urged that the circumstances are insufficient to meet the demand of the law. The facts showed either an accidental drowning or an intentional drowning by appellant. It seems to us that the circumstances taken together lead irresistibly to the conclusion that the drowning resulted from the criminal agency of appellant, and exclude every other reasonable hypothesis except that of appellant’s guilt. See West et al. v. State, 34 S. W. (2d) 253.

There are four bills of exception in the record. In bill No. 1 it is shown that the state proved by the witness Moreland that appellant worked for him on a commission basis and that appellant’s income was from twenty-five to forty dollars a week; and, further, that when appellant left his employment he (appellant) owed him $236.88, for which he gave him his note. This testimony was objected to principally on the ground that it did not establish motive and shed no light on the question as to whether appellant drowned his wife. Bill of exception No. 2 relates to proof on the part of the state that appellant owed a note on his home, which was several months past due. The same objection was interposed to this testimony as disclosed by bill of exception No. 1. We think the objections were properly overruled. The fact that appellant was in bad financial condition was a matter of material inquiry. He had taken out a large amount of insurance on ‘the life of his wife, payable to himself. The proof in question tended to show motive.

Bill of exception No. 3 brings forward objection to the introduction in evidence by the state of a letter written by appellant to Fay Condit the day after his wife was buried. This letter was shown beyond dispute to have been written by appellant and was identified by Fay Condit prior to the time it was introduced. It was a love letter in which appellant expressed his desire to see his paramour and talk over his plans for the future with her. The letter was clearly admissible.

As shown in bill of exception No. 4, while appellant was under arrest and after he had been questioned by the district attorney concerning the drowning of his wife, he tore up a letter and threw it into the waste basket. Securing the pieces, the district attorney placed them in order and discovered that the letter was a love letter from Fay Condit to appellant. Proof was made of appellant’s action in destroying the letter, and the letter itself was introduced in evidence. Appellant objected on the ground that article 727, C. C. P., relating to confessions' made while under arrest, had not been complied with. We think the objection was properly overruled. We quote from Under-hill’s Criminal Evidence, Third Edition, sec. 163, as follows: ■ “Thus it may be shown that he attempted to escape, or fled from justice or that he destroyed evidence or endeavored to fabricate evidence. Such facts may, with correctness, be assumed to form a part of the res gestae, though not contemporaneous with the principal transaction.”

In Kelly v. State, 102 Texas Crim. Rep., 395, a situation similar to that under consideration arose. The accused had been arrested and was being taken to jail. While enroute to jail in an automobile he seized a pair of pliers and broke one of the fruit jars containing the whisky. The trial court permitted the state to prove the act of the accused over his objection that he was under arrest. We held that the objection was not tenable, and said that it would be a remarkable situation if an accused should be permitted to destroy the evidence against him, and the state be denied the right to prove such destruction because he was under arrest at the time. The conclusion was reached that the fact that the accused was under arrest afforded no reason for refusing the testimony that he destroyed the evidence. See, also, Funston v. State, 38 S. W. (2d) 335. Appellant cites Hill v. State, 95 Texas Crim. Rep., 500, 255 S. W., 433. In that case’ the accused was on trial for transporting intoxicating liquor. There was a sharp issue as to whether the liquid found in possession of the accused was whisky. After being placed in jail, the appellant being very cold, grabbed up’ the jar of liquid the officers had taken from him and drank about half of its contents. In holding proof of this act of the appellant inadmissible, we said: “Proof that appellant seized the jar and drank part of its contents being an act done when under arrest, not res gestae, and which tended to show guilt, was improperly received.” We did not have it in mind at all that this was an attempt on the part of the accused to destroy the evidence, but rather that it was an act of his tantamount to an affirmation that the contents of the jar was whisky. If the testimony had been offered as admissible because it was an effort to destroy testimony, a different rule would have been applicable, and we would have held the testimony admissible.

Finding no error in the record, the judgment will be affirmed.

Affirmed.