Robbins v. State

282 S.W.2d 711, 162 Tex. Crim. 107, 1955 Tex. Crim. App. LEXIS 1560

• Court: Court of Criminal Appeals of Texas
• Decided: June 15, 1955
• Docket: 27626
• Status: Published

Opinions

BELCHER, Judge.

The offense is murder with malice; the punishment, fifty years in the penitentiary.

The state’s evidence shows that appellant, age 19 and married, and several teenage boys met at the home of Mrs. Ruth Craig about 9:30 P.M. on July 3, 1954, and there, with Patti Jetton and Pat Craig, both age 13, ate, drank some beer, gin and whisky, played a record player and danced. Mrs. Craig left the house about 10 P.M., stating that she would return in about an hour, but did not return until about 2 o’clock the following morning.

When appellant arrived at the Craig home that night he took a .410 double-barreled shotgun from his automobile, which he placed in the dining room.

After Mrs. Craig left, about 1:30 A.M., July 4, Karl Hormann, Charles Kenyon (the deceased), and Tim Kuykendall approached the house where Pat Craig, who was in the yard, told them that her mother and “Madge” were not there and requested them to leave.

At this time, appellant obtained the gun, met them at the door and fired the gun into the flower bed just outside the door, and then left through the back door with the shotgun. Appellant then saw a boy running from deceased’s automobile toward the house with “some object” in his hand and, failing to stop him by calling, fired the gun in front of him and some pellets struck the boy.

Appellant then reloaded the gun and, as he entered the front screen porch, called to the deceased who was standing by the living room door with his back to him and, as the deceased was turning, appellant shot him in the back mortally wounding him. Appellant told Hermann, who was nearby, to stay where he was or he would get what Kenyon had gotten. At this time, appellant said “I’ve got to go somewhere and think,” and then left the Craig home. This was before the officers had arrived.

From the appellant’s standpoint, the testimony shows that when Mrs. Craig left the house she asked appellant to take charge of the place and see that no uninvited person came in the house; that when Hermann and Kenyon arrived, who were strangers to appellant and not invited, he met them at the door, asked them to leave and fired the gun into the flower bed; that they proceeded into the house where appellant again talked with them and then left through the back door with the shotgun. Upon going to the front screen door, he heard Pat Craig scream, and saw deceased standing by the living room door holding her arm and he demanded that deceased leave her alone. The deceased, who had his back to appellant, while turning toward him said “I’ll cut your throat” and, as appellant was moving back, his knees struck a couch which caused the gun to be accidentally discharged and the bullet struck the deceased. At this time, appellant said “I didn’t mean to do it.”

On cross-examination, appellant made it clear that his defense was that the killing was the result of the accidental discharge of the gun, and that he did not intentionally shoot the deceased in defense either of himself, of Pat Craig, or in defending the home.

The court, in his charge, submitted self-defense, defense of another, defense of property, and accidental shooting, all of which the jury resolved against appellant.

Appellant challenges the sufficiency of the evidence to sustain his conviction for the offense of murder with malice.

The evidence herein shows, from the state’s standpoint, that the shotgun was not accidentally fired but that appellant shot the deceased in the back, at close range, under facts and circumstances which were wanton, reckless and unjustified and authorized a finding by the jury that the killing was with malice. Morse v. State, 154 Texas Cr. R. 561, 229 S.W. 2d 376.

Appellant contends that the state was allowed to impeach its own witness, Patti Jetton, on re-direct examination without having laid a proper predicate.

The record shows that Patti Jetton, while on cross-examination, testified that Mrs. Craig, upon leaving home about 10 P.M., placed the house in charge of the appellant. These facts had not been disclosed to state’s counsel until they were brought out on cross-examination. On re-direct examination, the state pleaded surprise and asked permission to cross-examine her as to contradictory statements about such matter before the grand jury. Said witness answered that she did tell the grand jury of such facts as related on cross-examination, and the state did not thereafter offer any testimony to contradict the same, therefore we are unable to here perceive any error.

Appellant complains of that portion of the state’s argument to the jury wherein the state’s attorney referred to Pat Craig as “living in a house of debauchery.”

The court promptly sustained appellant’s objection thereto although no reasons were given and, upon request, instructed the jury to disregard such statement, but declined to grant appellant’^ motion for a mistrial, to which he excepted.

Considering the trial court’s prompt action in response to appellant’s objection and request, together with the facts and circumstances shown to have occurred at this unchaperoned party in the early morning hours, attended by young married men whose wives were not present, two teenage girls and other teenage boys, along with the presence and use of intoxicating liquors, we conclude that no reversible error is here shown.

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the court.