Tuck v. State

231 S.W.2d 436, 155 Tex. Crim. 113, 1950 Tex. Crim. App. LEXIS 1769

• Court: Court of Criminal Appeals of Texas
• Decided: May 31, 1950
• Docket: 24628
• Status: Published

Opinions

DAVIDSON, Judge.

The allegation in the indictment upon which appellant was convicted was that appellant killed deceased by driving an automobile onto and across her body. The punishment assessed was twenty-five years in the penitentiary.

We are unable to perceive any material defect in the indictment, and appellant’s motion to quash was properly overruled.

About 8:30 o’clock on the night of June 26, 1947, deceased (Mrs. Lester Gertrude Crowell), and her friend, Stella Probst, were seated at a table in a beer tavern drinking beer. Appellant entered the place and later joined the women at the table in the beer-drinking. The three parties left the tavern for a time and later returned. It was then about 11:30 o’clock at night. They stayed about fifteen minutes; then Stella Probst left them, appellant agreeing to carry deceased home. After Mrs. Probst left, appellant purchased six bottles of beer and he and deceased drove away.

Some time thereafter and before daylight on the morning of June 27, police officers found deceased lying in the street two or three feet from the curb, with her chest crushed and paralyzed from the waist down by a severe back injury. She told the officers that appellant had run over her with a car. She was removed to the hospital, where she died the next day.

By dying declarations and written statements of the deceased, it is shown that appellant, after he and deceased left the beer tavern, endeavored to get her to engage in an act of sexual intercourse with him. Her refusal angered appellant, and he pushed her from the automobile. As she lay in the street, he drove the automobile across her body and then backed the car over the body, after which he drove away, leaving deceased lying in the street.

There was no material variance between the state’s testimony and that of the appellant regarding the facts up to the time appellant and deceased left the tavern together after buying the six bottles of beer.

It is appellant’s testimony that he and deceased were intoxicated; that, at the request of the deceased, he let her out of the automobile a short distance from her home; that he then drove to his home, arriving there about 12:20 o’clock, a. m. He denied that he had any part in the infliction of the injuries to deceased and that he knew anything about the matter until he was awakened and notified thereof by the officers at his home.

It was the province of the jury to believe the statements and declarations of the deceased, and the facts are therefore deemed sufficient to support the conviction.

The state offered in evidence two written statements of the deceased.

The contents of one of these statements the appellant put in evidence by cross-examination of the witness to whom the statement was made. When the state subsequently offered the entire statement, no objection was urged thereto. It is apparent, therefore, that appellant, having placed in evidence the contents of the statement and not having objected to the introduction thereof before the jury, is not in position to complain of the testimony of the other witnesses testifying to the same facts as those contained in the written statement.

Among the witnesses testifying to the dying declarations of the deceased was the witness Oma Hill, with whom deceased lived. She appears to have been the last witness to whom deceased made a statement before her death a short time thereafter. It is only from the statement made to that witness by deceased that there is found a motive for the killing, which was to the effect that when she refused to engage in an act of sexual intercourse with appellant he became enraged and pushed her from the car and ran over her.

Appellant, by special requested charge and exception to the court’s charge, complains because the trial court in his charge failed to instruct the jury as to the facts necessary to constitute a predicate for the receipt in evidence of a dying declaration and to require a finding by the jury as to the existence of such facts before considering the testimony concerning the declaration by the deceased.

The trial court was not under the burden of giving such a charge, because there was no fact issue for the jury to determine as a condition precedent to consideration of the dying declaration. The undisputed facts established the necessary predicate.

The state’s case was not one of circumstantial evidence, and no necessity existed to instruct the jury upon circumstantial evidence.

There appears in the transcript twenty-two bills of exception, which may not be considered because they were not filed within the time required by law. The record shows that the time for filing bills of exception expired on July 18, 1949. The bills were filed July 19, 1949, one day too late.

There appears in the record an application by appellant, filed July 15, 1949, seeking to have the time for filing extended to July 20, 1949, but there is nothing in the record showing that the trial court acted upon the application or granted the request for extension- of time.

Bills of exception not filed within the time and manner required by law (Art. 760, C. C. P.) cannot be considered upon appeal. The enforcement of this statute may be harsh, as in the instant case, where the punishment inflicted is twenty-five years in the penitentiary, nevertheless, we have no right to disregard the mandatory provisions of the statute.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the court.