Brown v. State , 121 Tex. Crim. 528 ( 1932 )

The offense, if any, was committed September 9, 1931, in the city of Wichita Falls, Texas. The state properly proved that appellant had picked cotton for Williams near the town of Gainesville, in Cooke county, Texas, on September 16, 1931; that he was paid by check, which was introduced in evidence; also by a negro woman who lived in the town of Gainesville that appellant came to her place of business on September 10, 1931, after an absence of seven or eight months. Appellant's immediate departure from the city in which the offense was committed for another locality some distance removed from the scene of the crime might lead to the conclusion that he was conscious of guilt. We quote from Texas Jurisprudence, vol. 18, p. 41: "The flight or attempted flight of a person after the commission of a crime, while not of itself sufficient to raise a presumption of guilt, is a circumstance which is to be considered by the jury in connection with all the facts and circumstances in the case as tending in some degree to prove a consciousness of guilt."

Further, we quote from the same text as follows: "In proving the flight of the accused it is competent to show that soon after the crime he left the county or the state, and that a letter written by him showed that he was a fugitive."

See Henry v. State (Texas Crim. App.), 43 S.W. 340. See, also, other cases collated on page 42 of vol. 18, Texas Jurisprudence.

The opinion is expressed that the testimony in question was also admissible under the rule that evidence to show that an accused has attempted to fabricate or procure false evidence is always admissible as showing a consciousness of guilt. Underhill on Crim. Evidence (3rd Ed.), sec. 207. See Wharton's Criminal Evidence, vol. 2 (10th Ed.), p. 1753; also, Faulkner v. State 104 Tex.Crim. Rep., 283 S.W. 824, 827. In this case Judge Hawkins said:

"It is always admissible to prove as a circumstance of guilt that an accused has fabricated or attempted to fabricate testimony. * * * It is apparent appellant was seeking to fabricate the defense of an alibi which was to culminate in the testimony of Parker placing him at home at the time of the robbery, preceding it with the statement that he left Franklin going toward home on the Tuesday in question. Under the circumstances it does not appear to be debatable that the state had the right to make the proof offered through the witness Cox and to follow it by showing that the statement then made was untrue. The state had a right to show by Parker that appellant had made an effort to induce him to testify upon trial to facts which were not true, and also to prove that appellant in fact did not leave Franklin at the time and in the manner claimed by him." See, also, Baines v. State, 43 Tex.Crim. Rep.,66 S.W. 847, and Kline v. State, 78 Tex.Crim. Rep.,184 S.W. 819.

Shortly after his arrest appellant made a written voluntary statement, after proper warning, in which he stated, in effect, that at the time the offense was committed in Wichita Falls he was in Gainesville picking cotton for Clarence Williams, for which he received a check for $1.34; that shortly after receiving this check he met a girl on the Katy tracks in Gainesville and "got a little piece from her," giving her fifty cents. This statement was made on September 19, 1931. It is apparent that, if believed, it exculpated appellant by placing him in the city of Gainesville at the time the offense was committed in Wichita Falls. After making the foregoing statement, appellant made another confession in which he admitted that he was present at the time the offense was committed and participated therein. He declared, however, in this confession that he had participated in the commission of the offense on account of fear of his codefendant Richard Johnson, who threatened him. The two confessions were introduced in evidence by the state. The court instructed the jury, in substance, to acquit appellant if they believed his codefendant, Johnson, threatened him, and that he (appellant) was induced to aid Johnson in the commission of the offense because of the fact that he believed he was in danger of death or serious bodily injury at the hands of Johnson. The burden was on the state to disprove the exculpatory statements contained in the confession relied upon to establish appellant's guilt; it being the rule that where the state introduces in evidence and relies for conviction upon the confession of the accused, and such confession contains exculpatory statements, the state is bound by the whole confession and the burden rests upon the state to show that the exculpatory statements were untrue. Branch's Annotated P. C. sec. 73; Menefee v. State, 67 Tex.Crim. Rep.,149 S.W. 138, 141; Combs v. State, 52 Tex.Crim. Rep.,108 S.W. 649. Proof of circumstances showing a consciousness of guilt on the part of appellant was admissible as tending to show that the exculpatory statements in his confession were untrue. In an effort to prove a consciousness of guilt, it was proper for the state to introduce the witnesses Williams and the negro woman for the purpose of proving that appellant was in Gainesville on the farm of the witness Williams and at the place of business of the negro woman soon after the offense had been committed in Wichita Falls, and that he was not there at the time of the commission of the offense, as stated by him in his first confession. This proof was within the rule that it is admissible to prove, as showing consciousness of guilt, that an accused has fabricated or attempted to fabricate testimony. And it was proper for the state to introduce the declarations contained in appellant's confession touching his presence in Gainesville at the time the offense was committed, and to thereafter bring the witnesses to show that such declarations were false.

It appears that the statement in which appellant declared that he was in Gainesville at the time the offense was committed embraced the following declaration: "I saw a girl named Lorene on the Katy tracks and got a little piece from her on the Saturday night after I picked cotton (last Saturday night). I gave her fifty cents." This statement was a part and parcel of the declarations appellant made in an effort, when first arrested, to establish an alibi. Appellant objected to the statement on the ground that it showed a separate and distinct offense. We do not think it discloses the commission of a separate offense. At most it would only seem to involve an act of immoral conduct. Be that as it may, it was a circumstance so interwoven with the declarations contained in the confession touching appellant's effort to establish an alibi that it was proper to go before the jury as one of the circumstances bearing on the question of an attempted fabrication of a defense.

We think we properly made disposition of appellant's bill of exception No. 6. We deem it unnecessary to further discuss the question presented by said bill.

Appellant insists that we were in error in holding that the arguments shown in his special charges were not erroneous and prejudicial. No objections to the remarks of the district attorney are brought forward in the bills of exception. This court has committed itself to the proposition that ordinarily objection to the argument must be made at the time it occurred in order that the attorney making the argument may, if he sees fit, withdraw or explain it. This rule has been applied in cases in which the death penalty has been assessed. Riles v. State, 117 Tex.Crim. Rep., 38 S.W.2d 342. Supporting the rule, see Sears v. State, 106 Tex. Crim. 219,291 S.W. 547, 548; Ross v. State (Texas Crim. App.),7 S.W.2d 1078; Harris v. State, 93 Tex.Crim. Rep.,249 S.W. 485. In Sears v. State, supra, it was said: "Unless objection to argument is called to the court's attention at the time the objectionable statements are made, they cannot ordinarily be taken advantage of by later complaint." Moreover, this court has held that the bill of exception must show that such argument was in fact made. French v. State, 99 Tex. Crim. 429,269 S.W. 786.

The first special charge reads as follows: "You will not consider the argument of the district attorney in closing when he said 'Send him to Huntsville for life, and then let him some day walk out of the pen doors a free man and start on his career of crime.' " There is a notation on this requested charge to the effect that it was presented to the judge before the jury retired, and refused.

The next requested charge reads as follows: "You will not consider for any purpose the argument of the district attorney in closing where he said: 'We depict to you by the witness a crime the harrow of which this section of the State has never seen.' " This charge bears notation that it was requested before the jury retired, and refused.

Manifestly, neither of the foregoing special charges show that the language set forth was in fact used in the argument of the district attorney. If it should be assumed that the argument was made, the special charges do not show that appellant objected at the time. In Salinas v. State,113 Tex. Crim. 142, 18 S.W.2d 663, the accused was under 25 years of age and had filed an application for suspended sentence. A special charge was presented to the court reflecting that the assistant county attorney, in argument, stated, in effect, that he had rarely ever seen a man apply for a suspended sentence when he was not guilty. This special charge sought to have the jury told that they could not consider such statement. An exception to the refusal of the court to give the requested charge was noted on the charge. In the opinion attention was called to the fact that if it had been shown that objection had been properly made at the time of the remarks, the refusal of the special charge would have been error. However, it was held that it was necessary to bring the matter forward by bill of exception setting out the surroundings, settings, time, and circumstances of the making of the remarks. It is clear that the special charges in the instant case bring forward nothing for review. If we should indulge the presumption that the argument was made and that appellant promptly objected at the time, we would be of the opinion that the trial court properly refused to instruct the jury not to consider the remarks. It was proper for the district attorney to urge the jury to inflict the death penalty. Moreover, we see nothing improper in advising the jury that the crime committed was, in effect, one of the worst that that section of the state had ever seen. The facts in evidence justified the conclusion that a horrible crime had been committed. Appellant has cited us no case, and we know of none, under facts at all similar to those before us, in which it has been held that remarks of the nature under consideration call for reversal. If the argument should be held to be improper, in determining whether the argument is of such a nature as to be obviously hurtful and prejudicial, the facts and surroundings of the particular case must be looked to. We quote from the opinion on motion for rehearing in the case of Silver v. State, 110 Tex.Crim. Rep., 8 S.W.2d 144, as follows: "Another thing that must be borne in mind is that the facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances. This is illustrated in Todd v. State, 93 Tex.Crim. Rep.,248 S.W. 695; Coates v. State, 98 Tex.Crim. Rep.,265 S.W. 891; Vineyard v. State, 96 Tex.Crim. Rep.,257 S.W. 548." See, also, Arcos v. State, 120 Tex. Crim. 315,29 S.W.2d 395.

The third special charge found in the record reads as follows: "You will not consider for any purpose the argument of the district attorney in closing where he said: 'If you vote for less than the death penalty go home to your daughter and tell her what you have done and she will tell you that she will be ashamed of you.' " The notation on the foregoing special charge shows that it was given. While the remarks contained in the charge last referred to are not approved by this court, we are unable to reach the conclusion that under the facts reflected by the record they should call for a reversal. As far as the record reflects the matter, when it was called to the court's attention the special charge withdrawing the remarks was given. In the light of the evidence before the jury in the present case, the argument in question is not regarded to be of such a nature as to have impaired the rights of appellant. Manifestly the record reflects the judgment of the jury on the facts.

The opinion is expressed that the record in this case discloses that appellant was accorded a fair trial.

The motion for rehearing is overruled.

Overruled.