Dodd v. State , 149 Tex. Crim. 156 ( 1946 )

The appellant was given a penitentiary sentence of ten years for the murder of her husband, Richard Dodd, by stabbing him with an ice pick, on the 30th day of September, 1944.

We find but one bill of exception in the record. This complains of the insufficiency of the evidence and brings the contention that there is not sufficient proof that the instrument used was in ice pick, as alleged in the indictment.

The killing took place at what was referred to as a honky-tonk in the edge of the town of Jefferson, on the highway leading toward Louisiana. The deceased had gone to the place where several of the colored race had gathered, and sometime thereafter the appellant appeared on the scene. The evidence is much in conflict as to the exact conversation between appellant and the deceased which began the difficulty between them. It does appear, however, that she wanted to go home and he declined to go with her and ordered her to leave in the same manner she had come. After he had backed across the highway with appellant following up, striking at him with something, he fell dead at the edge of the road.

One witness, Bubba Coley, who said he was present when the difficulty began, further testified as follows: "I saw her hitting at him, she was striking at him and he was backing back and said don't stab me with that ice pick. I couldn't hear nobody saying nothing but him. After they started there she backed him on across the highway and she was still striking at him with the ice pick, and a few minutes after they got across the road I heard him say 'Oh somebody come and carry me a doctor quick,' and after I heard that he fell."

From the foregoing, it will be noted that the res gestae statement of the deceased, made to the appellant, was to the effect that she was striking at him with an ice pick. Also, that the witness said she was striking at him "with the ice pick" as they crossed the street. This is direct testimony. After his death an ice pick was found near the body. The wounds were described by other witnesses as being small stab-like wounds, about the size of a BB shot, or of an ordinary ice pick. These additional facts were circumstances corroborating the direct testimony first above stated.

In her brief appellant apparently abandons the complaint made in the bill of exception and calls attention to the fact that the court did not give a charge on circumstantial evidence. She further contends that it was the duty of the court to give such charge, even though no exception had been made pointing out his failure to do so, and no request was presented for such charge. This position will not be sustained. Jazo v. State, 26 S.W.2d 631; West v. State, 75 S.W.2d 96.

Furthermore, the charge should not have been given even if requested. The necessity for the charge on circumstantial evidence is clearly obviated by that which has been denominated direct testimony. It is well settled in our State that where there is any direct evidence supporting the State's contention it is not necessary to charge on circumstantial evidence, even though the State relies on a chain of circumstances which may be, and is in many cases, considered the major part of the evidence upon which the State relies for conviction. The case before us does not come within any exception to this rule.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.