Tyrone v. State

180 S.W. 125, 77 Tex. Crim. 493, 1915 Tex. Crim. App. LEXIS 101

Opinions

HARPER, Judge.

Appellant was convicted at the January, 1915, term of the District Court of Eastland County of manslaughter and his punishment was assessed by the jury at confinement in the State penitentiary for a period of five years.

Our able Assistant Attorney General has so ably discussed and disposed of every question raised in the motion for a new trial, we adopt the brief as the opinion of the court:

“Bill No. 1 complains that the court erred in giving verbal instructions to the panel of jurors for the week before this case was called for trial and before it was set for trial. A special venire was afterwards ordered and two men, Lane and Gillette, who were on the panel for the second week, were accepted as jurors. At the time appellant made no objection to either juror and the record does not disclose that appellant had exhausted his peremptory challenges when either of said jurors was accepted. This complaint is wholly without merit. Reed v. State, 74 Texas Crim. Rep., 242, 168 S. W. Rep., 541; McGaughey v. State, 74 Texas Crim. Rep., 529, 169 S. W. Rep., 287. But not only is this bill wholly without merit, but the entire instruction copied in this bill and delivered to the jury for the week on the part of the trial court was so able and so proper and so commendable that I ask this court, if they agree with me in this view, to copy said instruction in the opinion that it may be preserved in the jurisprudence of our State as an able appeal to the loftiest sentiments of citizenship.

“In the next two bills appellant complains that the court erred in permitting counsel for the State to read from a memorandum testimony which was given by the witness Alvin Tyrone before the grand jury, for the purpose of impeaching said witness and for the further purpose of placing him in a bad attitude before the jury, it being alleged that said witness was not an unwilling witness and State’s counsel was not surprised at his testimony. The bill further complains that the court, in the presence and hearing of the jury, said to counsel: ‘Gentlemen, I don’t want any more of the time of the court wasted with frivolous controversies/ it being alleged that said remark was calculated to prejudice the rights of appellant. These bills as qualified and as accepted by appellant show that the only objection or exception taken by appellant .was with reference to the district attorney’s questioning the witness while looking at a piece of paper which he had in his hand. Judge Morris, for appellant, stated he objected to counsel reading from the testimony before the grand jury, and the district attorney replied that he was not reading from the grand jury testimony but was referring to private notes in order to know how to frame questions to the witness. The court thereupon said that if it was the private notes of counsel he had a right to refresh his memory with them. Counsel for appellant then said it was either the grand jury testimony or testimony taken at the examining trial. The court ruled that if the district attorney was using either grand jury testimony or examining trial testimony the defendant could see it but he had no right to see private notes of counsel for the State used purely as a memorandum to refresh his memory. These bills as qualified and accepted by appellant are wholly without merit, because appellant’s counsel offered no testimony to show that the paper in the hands of the district attorney was testimony adduced at any former trial or hearing. And it was certainly proper for the court, in order to stop further colloquy between counsel in the courtroom and in order to preserve order and decorum, to state to counsel to be seated,—thát he didn’t want any more time wasted with frivolous controversies, such as this one was.

In the next bill appellant complains that the court erred in permitting .the State to ask the witness Mrs. W. I. Tyrone, on cross-examination, over appellant’s objection,—Ts it not a fact that your husband, W. I. Tyrone, had you to place one hand on the Bible and one hand on your heart and say that there had never been anything wrong between you and Dr. Evers?’ The bill nowhere discloses what answer was given to said question. But reference to the statement of facts discloses that the witness answered that he had not. In the first place, this was certainly legitimate and proper eross-examieation. The defendant himself placed his wife on the stand and elicited from her the remarkable story that deceased had exerted hypnotic influence over her to such an extent that she was powerless to resist him, and that, being absolutely devoid of will power yet conscious of the doctor’s acts, and while under his influence she yielded to deceased and permitted him to have carnal intercourse with her; and further, that she had communicated the story of her debauchery to her husband and that on account of the children they had agreed to keep it quiet; that before she would tell him she exacted a promise from him that he would not kill deceased, etc. Certainly, therefore, the State had the right to ask her on cross-examination, not only what her husband said when such information was first communicated to him, but how he was affected, and any other matter proper and material to the main testimony given, and further for the purpose of laying a predicate for her impeachment on any of such matters. See Lee Stacy case, recently decided. In the second place, since no answer is set out in the bill, the same is insufficient as this' court can not determine whether or not appellant was injuriously affected. And if reference be had to the statement of facts, it will be observed that a negative answer was returned to said question, and hence appellant can hot claim that he was prejudiced thereby.

“Appellant also complains that the court erred in permitting the district attorney in his closing argument to read from a written memorandum made by himself which he referred to as testimony of some of the witnesses. Counsel for appellant thereupon requested the following instruction: You are instructed that the statement of the district attorney that a certain written instrument was the evidence of a witness in this case is not evidence and you will not consider the statement so made by the district attorney whatever, but you will disregard such statement and you can not consider the same against this defendant for any purpose.’ It appears that when objection was made the court immediately orally instructed the jury that they could not consider the argument of the district attorney or of any other attorney as evidence in the case, and that the written memorandum from which the district attorney read to them a moment before while making his argument was not evidence and they should disregard the same. He further instructed them in this connection that unless they found that 'arguments of counsel were supported by the record evidence in the case they should disregard any portion of the same not supported by such evidence. However, after delivering such oral instruction, counsel for appellant wrote out a written charge to the same effect and asked the court to again interrupt State’s counsel in order to read their written charge,—which the court marked given, and the court declined further to interrupt the speech of State’s counsel. Said special charge was, however, handed to the jury with the court’s main charge. As I view the matter, this bill is absolutely without the semblance of merit, and I believe it would be had the court refused to give either the written charge or the oral instruction. The writer of this brief has scarcely addressed a jury in a murder case in which he did not take notes during the trial of the cause on important testimony from leading witnesses and copied it in his memorandum book, and while addressing the jury, in order to be absolutely correct in quoting the witnesses, would read from the memorandum the exact words b), the witnesses, and has left it to the jury to say whether or not he was correct in quoting said witnesses’ testimony. But in this case appellant certainly can not complain because he had the benefit of both oral and written instructions; and since the court had orally instructed them, certainly he was not called upon to again read to the jury the special charge which he had given.

“Appellant contends the court erred in sending for the jury after they had been deliberating on their verdict about twenty-four hours and telling them he had to go to his home in Abilene and urging them to continue their deliberation conscientiously in an effort to arrive at a verdict. The remarks are set out in full in the bill to which the court is respectfully referred. I submit that said instructions were altogether proper and commendable, and were but an appeal to the jury to do their duty as good citizens. His entire statement to them is absolutely devoid of a single improper reference or remark as I view it. He distinctly told them to take plenty of time, do good work, and stay in good humor,—all of which instructions were devoid of.prejudices conducive to a well considered, impartial, unbiased verdict. Muckleroy v. State, 42 S. W. Rep., 383; Dow v. State, 31 Texas Crim. Rep., 278; Jordan v. State, 30 S. W. Rep., 445; Wilkerson v. State, 49 Texas Crim. Rep., 170; Brady v. State, 74 S. W. Rep., 771; Carlisle v. State, 56 S. W. Rep., 365. I also submit that the necessity of the judge’s going to his home in Abilene did not ipso facto adjourn said court, and that part of this complaint is without merit. White v. State, 61 Texas Crim. Rep., 498; Scott v. State, 47 Texas Crim. Rep., 568. He returned on the next day and remained in attendance on court.

“Appellant contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence in this: that the State, over objection of appellant, proved by the witness Dr. Sheppard that it was impossible for any person to wield a hypnotic-influence over another person to the extent that such person would submit to the sexual embrace of such other person, or that the person under such influence would lose all will power to resist such act of intercourse, etc. Appellant alleges that for the first time, after the trial of this, cause, he ascertained that the witness Dr. Johnson, a resident of East-land County, would testify to the contrary. In connection with this bill I ask the court to refer to appellant’s motion for new trial wherein appellant alleges that Peterson and Haynes’ ‘Legal Medicine and Toxicology,’ vol. 2, p. 138, states that there is no doubt that the hypnotic state may be induced and used for sexual purposes, etc., and further', states that said book is a standard medical authority. I attribute appellant’s complaint as. to newly discovered testimony to the untiring zeal on the part of his attorneys to find some pretext on which to hang at least a faint hope for. a reversal of his cause rather than to a desire-to submit any real substantial matter to the court in this bill. It would j be a reflection on the ability of appellant’s counsel as criminal attorneys- ¡ to say that they could not foresee that when they introduced appellant’s'wife and elicited from her her weird and unreasonable story her testimony would- be attacked by the State from every legitimate angle. And appellant’s counsel must have known that the reasonableness of the story would depend on the reasonableness of hypnotic power. That very fact must have charged them with the duty to search the medical authorities on that subject; and when Dr. Sheppard had concluded his testimony they had but to refer to the standard medical work upon which they rely for a new trial—the index of which would have immediately directed them to the paragraph which they now claim as newly discovered evidence—and when they had found it, their necessity in the-case would have immediately prompted them to consult Dr. Johnson and all other able physicians to find testimony further to support their contention. But they did not even ask the time of thp court to look up the medical authority or to consult with a physician; and certainly they can not be heard to complain at this late date. The testimony of Dr. Sheppard adduced by the State and complained 'of herein was material on the part of the State because if appellant’s wife’s story was unreasonable and probably untrue, then it would certainly he considered by the jury as tending to throw light on the fact as to whether or not she ever communicated such a story to her husband prior to the homicide.

“Appellant also insists that the court erred in overruling his motion for new trial because the evidence was wholly insufficient to sustain the conviction for manslaughter. And in apparent sincerity appellant’s .counsel contend that this is true because appellant himself says that he killed deceased in self-defense and, therefore, if he did, he should of necessity have been acquitted. Appellant’s counsel at the moment must have forgotten that there were other witnesses who testified in this case, among them being appellant’s own children, his daughter-in-law, his aged mother, and others, and it must have for the moment escaped the attention of appellant’s counsel that these witnesses had contradicted appellant on almost every material point in his entire testimony. 'The bill needs no further comment.

“The indictment, in this case is valid and the State’s witnesses, if |they are to be believed,—and the jury evidently did believe them,— furnished ample testimony on which to base the conviction. The charge of the court presents in a most favorable light to appellant every defense even remotely raised by the evidence of appellant’s witnesses. Indeed, the charge is so perfect that not a single exception is taken to it by appellant’s counsel. And not a single requested charge as asked and refused. An extended statement of the facts would be useless. As I view the record it is absolutely clear of error on the part of the trial court and the judgment should be affirmed.”

• And as requested by Mr. McDonald, the reporter, in connection with this case, will publish the court’s remarks to the jury when it was empaneled for the week.

The judgment is affirmed.

Affirmed.

DAVIDSON, Judge, dissenting.

[Rehearing denied October 13, 1915.—Reporter.]

November 17, 1915.