Thrash v. State

338 S.W.2d 447, 170 Tex. Crim. 97, 1960 Tex. Crim. App. LEXIS 2097

• Court: Court of Criminal Appeals of Texas
• Decided: February 10, 1960
• Docket: 31138
• Status: Published

Opinions

MORRISON, Presiding Judge

The offense is murder; the punishment, thirty-five years.

The state’s evidence reveals that appellant, his wife, and another couple were at the home of one Winona Lee eating breakfast; that Fulton (who was later killed) called on the telephone, asked to speak to appellant, and later came over to the Lee home. When he arrived, Fulton appeared to be in an argumentative mood, immediately began drinking beer, and tried to borrow an automobile. When appellant refused to loan Fulton his automobile, Fulton struck at appellant’s wife and later brandished his knife in a threatening manner toward appellant. Appellant was “coaxing” Fulton to quiet down and finally got him out of the house and into the garage, at which time a shot was fired and Fulton was seen to crumple. There was another man present in the garage at the time. No witness saw a weapon in appellant’s hand or on his person.

This case was tried and briefed on appeal on the theory that the state would be able to show a conspiracy between the appellant and his wife to kill the deceased, but the record before us is devoid of any proof to support such a theory. The state did prove that a few days before the shooting appellant’s wife came into a store where her friend the storekeeper was cleaning his guns and asked to borrow a pistol which was shown to be similar to the one that the state contends was used, stating that she needed one for her own protection, but there is no evidence that she bore any ill will toward the deceased or that she planned to use the pistol for any unlawful purpose. All the evidence shows that appellant, his wife and three companions were peacefully eating breakfast when the deceased called and said that he was coming over. When he got to the house, he began to “raise the roof” and was shown to be the aggressor throughout. There is nothing to show that appellant planned to kill the deceased. Neither the appellant nor his wife testified, and he did not put his reputation in issue. We have emphasized these facts because the court permitted the witness Lee to testify, over strenuous objections, that several days after the shooting appellant’s wife suggested to her that if questioned by the police she should confess that she killed the deceased, stating that appellant had been in trouble ten or twelve years before, which fact would make it difficult for him if he were tried for this offense. Appellant’s wife was not a co-conspirator ; the statement was not res gestae. The fact that appellant had “been in trouble” would not have been admissible under Article 732a, V.A.C.C.P. It should be borne in mind that appellant did not testify or put his reputation in issue.

In Brown v. State, 103 Tex. Cr. Rep. 420, 281 S. W. 210, this court held it was reversible error to permit the arresting officer to testify that after the arrest the appellant’s wife said to appellant, “I told you not to do it.” In Ray v. State, 43 Tex. Cr. Rep. 234, 64 S. W. 1057, this court held it reversible error to permit the state to prove that appellant’s wife in his presence made efforts to conceal the stolen property which was found in their home. In Story v. State, 107 Tex. Cr. Rep. 293, 296 S. W. 516, it was held reversible error for a witness to testify that the accused’s wife told her in his presence that he thought more of another woman than he did of her. See also Hignett v. State, 168 Tex. Cr. Rep. 380, 328 S.W. 2d 300.

It must be borne in mind that there is a fundamental distinction between being an accessory to the principal offender and being a co-conspirator to the crime committed by another. To be an accessory, one must know that an offense has been committed and thereafter conceal or aid the offender to escape or avoid detection, and, of course, the wife cannot be punished as an accessory. Article 79, V.A.P.C. To be a co-conspirator, one must know that an offense is to be committed and agree in advance to aid in its commission.

There are exceptions to the rule announced by Article 714, V.A.C.C.P., which provides that the wife may not be made a witness against her husband except in cases where the husband is charged with committing an offense against her, such as res gestae statements, or where the wife is shown to have been a conspirator with her husband. Neither of these exceptions applies in the case at bar. The conversation between appellant’s wife and Mrs. Lee occurred several days after the shooting, and there is nothing in this record to indicate that appellant planned to kill the deceased, and therefore none that his wife had agreed to aid in the commission of such crime.

By this inadmissible evidence, the state was permitted to prove that appellant had had prior difficulty with the law, that his wife was conscious of his guilt of the murder and was endeavoring to fabricate a defense to the crime.

In addition to the above and to demonstrate further the damaging effect of such testimony, we call attention to the fact that appellant’s wife was also indicted for the instant murder, as were Mrs. Lee and the other couple who were present on that occasion. Appellant’s wife filed a motion for severance, praying that some of the other co-indictees be tried first, but did not ask that appellant be placed on trial before she was tried. She filed no motion for continuance. Appellant filed a motion for continuance and a motion for severance praying that his wife be tried before him.

If appellant’s wife had been tried first and acquitted, then she would have been available to appellant to have denied this inadmissible testimony after it was introduced. In the instant trial, she was not available to appellant for such purpose.

We also call attention to the following occurrence. While Mrs. Lee was being examined by the state, she was asked if appellant’s wife had not told her that the sheets which had been used to wrap Fulton’s body had been torn up and scattered along the road. The witness answered in the negative. The prosecutor then asked the witness if she had not shown Captain Fritz where the pieces of sheet might be found. When this question was objected to, the prosecutor without further ado stated that the witness had become hostile and that he claimed surprise, and the objection was overruled. Recently, in Pelton v. State, 167 Tex. Cr. Rep. 649, 332 S.W. 2d 529, we had occasion to point out the proper procedure to be employed when surprise is claimed. There, we said: “When the witness did not testify as expected, the jury were withdrawn, and State’s counsel testified fully as to his prior conversations with the witness and demonstrated that he was in fact surprised.”

At the hearing on his motion for new trial, the appellant introduced into evidence a “suicide note” written by the witness Winona Lee after the trial, in which she recites that she was standing in front of appellant and that it was she who fired the fatal shot. The witness Lee did not commit suicide, but the state was unable to challenge the authenticity of the note.

This case was submitted to the jury on a charge of circumstantial evidence. We have concluded that the trial court erred in failing to grant the motion for new trial. Upon another trial appellant might employ such “suicide note” in cross-examining the state’s principal witness Lee. Hughes v. State, 101 Tex. Cr. Rep. 540, 276 S. W. 239, is authority for the rule that where the state’s case rests on circumstantial evidence the declaration of a third party that he committed the offense is a proper matter of proof.

Upon another trial we trust that the question of misconduct on the part of the prosecutor will not arise.

For the errors pointed out, the judgment is reversed and the cause is remanded.