Malcek v. State , 33 Tex. Crim. 14 ( 1893 )

HURT, PRESIDING Judge.

Appellant was convicted for the murder of his wife. Murder of the second degree. Ten years in the penitentiary.

Upon the trial the State asked appellant, he being a witness, “Did not your wife bring suit against you for divorce, in Falls County, on the charge of adultery with the woman-who staid at your house?” Counsel for appellant objected, because irrelevant and calculated to prejudice him. Appellant answered, “yes.” After a very careful examination of the question as to whether this evidence was admissible, we have concluded that it was under the circumstances of this case.

Appellant objected also upon the ground that the petition filed in the case was the best evidence of the grounds of the divorce. . Appellant certainly knew the ground, and could state it without the petition. There was no controversy as to the ground for the divorce.

Appellant contends that the court should have instructed the jury for what purpose this evidence was intended. It was for the purpose of showing the relations between the appellant and his wife — that they were not at all harmonious — and the jury could have considered the evidence for no other purpose.

John Hruska testified that he heard the voice of a woman at appellant’s house on the evening before the dead body of deceased was found next morning. Counsel for the State asked witness, “Was the sound you heard a sound of distress?” Appellant objected, because the question was leading and suggestive; whereupon the presiding judge prepared proper questions, in writing, came down from the bench to where the interpreter was sitting, handed him the paper upon which the questions were written, and told him to ask the questions as written. Appellant objected to the questions because they were also leading and suggested the answers. The questions were: “Did the- noise sound as if the person was in joy or distress? Was it as if she was laughing or crying, or if she was suffering pain, or enjoying pleasure? Or was she making a mere idle noise, as if nothing was the matter with her?” Witness answered: “It sounded like a woman’s Yoiee, crying.” The questions were neither leading nor suggestive of the answers.

Counsel for appellant contend that the conduct of the presiding judge in this matter was calculated to injure the rights of appellant. If the conduct of the judge impressed the jury that he (the judge) was a prosecutor, or that he believed the appellant guilty and was aiding in developing his guilt to the jury, this judgment should be reversed, it being a settled rule in this State that the judge’s mouth must be closed, against any expression tending to show his opinion of the guilt of the accused. Nor will he be permitted by “his conduct” to exhibit to the jury his opinion that the accused is guilty, nor his opinion as to the truth or falsity or weight of the testimony, nor the credit to be given any witness. Was the conduct of the judge under discussion calculated to impress the jury that he believed him guilty, or that he desired that the accused should be convicted? We think not. The matter sought to be elicited from the witness was important testimony, and it required caution in the questions propounded to him to prevent leading or suggesting to him the answer. The questions written by the judge accomplished the purpose without being obnoxious to either objections.

Counsel for appellant contend that the corpus delicti is not shown; that is, that Mrs. Malcek was dead, and that her death was caused by criminal agency. That she was dead is conceded, but the contention is that the evidence fails to prove that her death was caused by the act of some person. Suicide is not suggested, the contention being that she may have been killed by being kicked by a mule. The mortal wound — that on the head — excludes the mule hypothesis. It was round, about the size of a silver dollar. The blow had driven that portion of the skull directly under the wound, in upon the brain, and caused death. Besides this the throat and neck of deceased were scratched and black when the body was found in the cow pen. The nature of the wound, the condition of the throat and neck, when considered in connection with the fact that the body was found in the cow pen, exclude the theory of suicide, or that she was killed by some agency other than human.

The next contention counsel for appellant make is, that if it be conceded that some person murdered the deceased, still the evidence is insufficient to support the theory that he was that person. The conduct of the parties towards each other was violent indeed, and at times brutal. This state of affairs continued up to the night of - the homicide. Appellant had assaulted his wife, for which he had pleaded guilty; had attempted to beat her- on another occasion; threatened that if she did not leave he would kill her. Now, when the facts are considered, in connection with his conduct, when he discovered his wife lying in the cow pen, the conclusion that he was the murderer is very strong. What was his conduct (sworn to himself)? He swears, that his wife would get drunk whenever she had the opportunity; that on the night she was killed, he, at her request, had furnished her with the whisky, remarking to her: “Now you have it; if you drink the toddy you won’t have it to-morrow.” On the next morning, he swears he found her body in the cow pen. What was his conduct there? He says “that he was very much frightened, did not go to or touch her, but went at once to Bartek’s to get him to go with him to see if his wife was dead.” This is very strange conduct indeed. Why should he be frightened? He knew that his wife would get drunk on any occasion presented; he had supplied her with the whisky; how natural would it have been for him to have supposed her drunk, and not dead? He saw no wounds on her body. Why go to Bartek’s at all, until he ascertained that his wife was not drunk, but dead? Such conduct under the circumstances was not that of a sane and innocent man.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.