Lee v. State , 164 Tex. Crim. 279 ( 1957 )

MORRISON, Presiding Judge.

The offense is maiming; the punishment, three years.

Animosity had existed between the injured party “Lady” and the appellant “Chicken” for some time prior to the night in question. Seven years before, they had a fight in an alley in which Lady claims that she was cut and Chicken’s nose was bitten. The appellant contended that their animosity grew out of her husband’s attentions toward the injured party and claims that she had seen them together in another city a few nights before that charged in the indictment. The injured party denied any familiarity or infidelity with the appellant’s husband. Both husbands testified. Lady’s husband denied any knowledge of her infidelity to him, and the appellant’s husband testified that he had been having an affair with Lady and that all the ill will between the women was “over him.”

This brings us to the night of the assault herein charged, which cost the injured party the vision in both of her eyes.

Lady testified that she and her eight children went to a Little League ball game; and, as she was outside her automobile holding one of the younger children so that he might be “excused,” one of the older children warned her, “There comes Miss Chicken. She has got something behind her.” Lady testified that she returned the small child to the automobile, picked up a hammer from the floorboard, and prepared to meet Chicken, who was approaching her; but that before she could do anything the appellant threw a liquid into her face, and she, in turn, threw the hammer in the appellant’s direction. She stated that another of her children again warned her, “Here she comes, she has got a knife,” and that she then fled some three blocks to the home of a Latin-American, who carried her to the hospital, and that she was carried the next day to a specialist but that his efforts in her behalf had been to no avail and that she was completely blind.

The indictment was in three counts, two charging that the liquid thrown was lye, and the third charging that it was a solution “the contents of which is unknown to the grand jurors.”

Certain scrapings were taken from the injured party’s automobile and submitted to the Department of Public Safety for chemical analysis. Chemist Charles Smith testified that he found the specimen to be “a compound containing sodium” and, further, “I was unable to specifically identify this as sodium hydroxide, which is common household lye. It only had the properties that I mentioned, which are suggestive of lye.”

A member of the grand jury testified that they had been unable during their deliberations to determine definitely what the solution was which was thrown.

Dr. Crymes testified that on the night in question he received a telephone call from the appellant in which she inquired “what was good for a lye burn,” saying that some had “splattered back on me.” He stated that shortly thereafter he went to the hospital, where he administered first aid to the injured party, and expressed the opinion, though he conducted no tests, that the solution which had been thrown into the injured party’s eyes was lye.

All three counts of the indictment were submitted to the jury, and they returned a general verdict; and no question of election has been raised.

The injured party was supported in her testimony by two of her children.

The appellant testified to quite a different state of facts. She stated that, as she sat in her automobile at the ball game, Lady approached her automobile and began to assault her with a hammer, stating that she was going to kill her.

She stated that on that morning she had prepared a solution of Saniflush and water in order to clean a stove belonging to her employer, that some was left over, and she placed it in an old oil can and put it in her automobile to take home, but that when she got home she forgot to take it out of the automobile.

Appellant testified further that Lady hit her on the arm, in the mouth, and on the back of the head with the hammer; that she finally got hold of the hammer with her left hand, and, as Lady pulled her out of her automobile by the hair, she picked up the can of Saniflush from the floorboard and “I just throwed it in her face, can, paper sack and all,” at which time Lady relinquished her hold on the hammer, and she got in her automobile and drove out in the country to the home of some of her relatives. Appellant offered no eye witnesses to the affray and stated that she had been unable to locate any.

The jury resolved the disputed issue of self defense against the appellant, and we find the evidence sufficient to support their verdict.

The facts will be more fully discussed in connection with the bills of exception so ably argued by counsel and in the order presented in his brief.

In the court’s charge, the jury was instructed that in order to convict they must find beyond a reasonable doubt that appellant wilfully and maliciously threw into the face of the injured party a solution of lye or other solution, the contents of which were unknown to the grand jury, and that said solution did put out the sight of her eyes.

In this connection, the jury was instructed that if they found beyond a reasonable doubt that the means used by appellant were such as would, in the manner used, ordinarily result in maiming or destroying the sight of the eyes, the law presumes that the intention was to maim without regard to the knowledge of appellant in using such means, as to whether or not the same would be calculated to maim or destroy the sight of the eyes.

The court’s charge further instructed the jury to acquit if they found or entertained a reasonable doubt that appellant threw the solution while under reasonable apprehension or fear of death or serious bodily injury from an attack by the injured party.

No complaints, by objection, exceptions or requested charges, were lodged against the charge save that shown by bill of exception No. 1.

This bill complains of the refusal of the trial court to grant her requested charge No. 1, which told the jury to acquit if they found that “throwing such solution into the eyes of the injured party was accidental.” She contends that such a charge was required because the appellant testified that when she threw the liquid she did not intend to put out the eyes of the injured party.

Appellant relies upon a number of murder cases as authority for her contention that the appellant’s testimony raised the issue of accidental maiming. In the main, they are those cases which involve the alleged accidental discharge of a firearm, and, we have concluded, under the facts here before us, have no application to the case at bar. When the appellant, who had used the fluid contained in the can that morning and certainly knew its caustic properties, “throwed it in her face,” she will be presumed to have realized the consequences of her act. The mere statement that she did not intend to put out the injured party’s eyes does not raise the defense of accident. Her defense here is that she did not intend the consequences of the act, which is something else again from a claim that she did not intend to commit the act.

Bill of Exception No. 2 involves newly discovered evidence. At a part of the bill, there is the testimony of one Ellis given on the motion for new trial. He merely states that he saw two colored women meet near the appellant’s automobile, saw the injured party stagger, turn and run. He did not see any assault, any hammer or any can. We cannot bring ourselves to conclude that the addition of his testimony would have shed light on the disputed issues which were controlling in this case.

Bill of Exception No. 3 sets forth the appellant’s proof as to the infidelity of her husband with the injured party and then quotes from the prosecutor’s argument in which he submitted to the jury his contention that the important issue for them to decide was what happened on the night in question and that the court had not told them to acquit if they found that a love affair had been taking place. The objection was that this was an incorrect statement of the law.

We have concluded that state’s counsel was arguing from the court’s charge, which had been read to the jury, and we fail to perceive any error in the argument.

In Bill of Exception No. 4, the prosecutor argued to the jury that, if the injured party had hollered “I am going to kill you,” as the appellant had testified that she did, some of the spectators at the ball game would have heard her. The objection was that such was not a reasonable deduction. We do not agree.

In Bill of Exception No. 5, the prosecutor argued that, if the appellant had sustained the injuries which she claimed she did as the result of being hit with a hammer, she would have called her kinsman from out in the country to support her testimony since the doctor who examined her at the hospital did not do so. The objection was that the kinsman could have been called by the state as well as the appellant.

Appellant relies, among other cases, on Reed v. State, 117 Texas Cr. Rep. 588, 36 S.W. 2d 526. In that case, the prosecutor stated that if some missing witnesses had been present at the trial, they would “have sealed the doom of this defendant.”

There is a vast distinction between giving unsworn testimony, as was done in the Reed case, and commenting on the failure to produce a witness, as was done here. See Hines v. State, 160 Texas Cr. Rep. 284, 268 S.W. 2d 459.

Bill of Exception No. 6 related to the prosecutor’s argument in which he discussed the testimony of the appellant’s reputation witnesses. He pointed out that only two stated that their knowledge of such reputation had been acquired from hearing others discuss it, while the remainder had stated that their opinions were based on their personal contact with the appellant. The objection was that this was improper argument and that reputation was a question of law and not of fact, and not a question of the opinion of the prosecutor.

Reliance is had on Martin v. State, 122 Texas Cr. Rep. 174, 54 S.W. 2d 812, which was reversed because the prosecutor told the jury that the accused was not entitled to a suspended sentence unless he proved his good reputation but which is not authority here.

Certainly, the prosecutor had the right to argue that certain reputation witnesses for the appellant did not, in fact, know her reputation.

Bill of Exception No. 7 reflects that the appellant called a fact witness, Clay, who testified that she had known the appellant for a number of years, and in the course of his argument the prosecutor commented upon the appellant’s failure to ask this witness about her reputation.

Reliance is had, among other cases, on Pollard v. State, 33 Texas Cr. Rep. 197, 26 S.W. 70, wherein it was held reversible error for the prosecutor to argue the failure of the accused to call any reputation witnesses at all. The Pollard case cannot be construed as authority here because the appellant did call a number of reputation witnesses and the prosecutor had the right to question why a fact witness that she had called was not questioned concerning this issue.

Bill of Exception No. 9 grows out of certain proof relating to a hood or headgear of the injured party which the appellant claims to have found in her husband’s automobile. Appellant’s counsel had argued that it was clearly established that it belonged to the injured party because no witness had denied such fact. In his argument, the prosecutor said, “There is only one person living to deny this, and she is blind, she can’t even see.”

The objection was that this was “an unfair deduction, improper argument and prejudicial.”

Appellant argues that there were other members of the injured party’s family who could have denied that it was her hood.

We have concluded that this argument was clearly provoked by the argument of defense counsel, and hence presents no reversible error.

Bill of Exception No. 10 complains of further argument relating to the hood, in which the prosecutor suggested to the jury that they examine the same in the jury room and said, “I see some hair on that hood, and it is certainly not black.” The objection was that the remarks of the prosecutor were out of the record. The court told the jury that the statements of counsel were not evidence and they were to consider only the testimony of the witnesses and the exhibits. We have concluded that either counsel might examine any exhibit and direct the jury’s attention to anything of pertinence. The jury might then examine the exhibits for themselves and determine if counsel’s observations were accurate.

Bills of Exception Nos. 8 and 11 are directed to rulings of the court and present the only serious question in the case. One of the bills is qualified by the court by attaching thereto the entire argument of the prosecutor. From this, we find that appellant’s counsel objected seventeen times. A number of these objections have been discussed in the preceding bills. Bill of Exception No. 8 relates to the court’s ruling in passing upon the argument discussed in Bill of Exception No. 5. The objection was:

“Your Honor, that Mr. Louie was just as available to the District Attorney as he was to the defendant, and we object to that as being improper argument. If he wanted Mr. Louie, why didn’t he bring him up here.

“The Court: The jury will remember the testimony. Don’t interrupt the speaker.

“Mr. Barber: I am not interrupting the speaker, but I certainly have a right to make an objection to his argument.

“The Court: Yes, sir, you can object, but don’t comment on it. Go ahead with the argument.”

If there had been no further objections, then the court’s remarks would have presented a serious question because counsel has a right, and it is his duty, to interrupt the prosecutor if he is making improper argument. Following this admonition of the court, however, we find ten further objections which show conclusively that counsel was not intimidated by the remarks of the court.

Bill of Exception No. 10 reflects the following:

“The Court: Well, he can draw his own deductions from the testimony. I overrule the objection. Go ahead with the argument.

“Mr. Barber: Your Honor, I object to the Court making a comment on my objections. The Court is giving everybody in this courtroom the impression that I don’t have the right to object, and the Court knows that if I don’t object, I waive it.

“The Court: Yes, but we have to argue the case. It seems like the District Attorney can’t argue for a minute without an objection.

“Mr. Barber: Your Honor, I object, I object to the Court making the statement in this courtroom that it seems like the District Attorney can’t make a statement without an objection, as being a comment on the weight of the evidence and as expressing prejudice on the part of the Court.

“The Court: The Court is trying to control the argument, which the Court is required to do. The Court is required to give each one a chance to argue the case. And that is all I am trying to do.

“Mr. Barber: Then I ask the Court to instruct this jury that defense counsel has a right to object.

“The Court: Certainly you have a right to object. You are given a chance every time. Let’s try to keep the argument going.”

When taken with that which preceded and that which followed, the statement of the court that the district attorney was having trouble making his argument because of the objections is not nearly so serious as if the statement is considered by itself standing alone. It must be remembered that the jury heard the 'entire argument, the objections, and the rulings; and when the same is viewed as a whole the seriousness of this one remark is not considered of sufficient gravity to call for a reversal of this conviction.

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