Coleman v. State , 135 Tex. Crim. 229 ( 1938 )

The offense is murder; the punishment, confinement in the State Penitentiary for a term of forty-five years.

It is charged in the indictment that on or about the 12th day of June, 1937, Morris Coleman, with malice aforethought, did kill Louise Coleman by shooting her with a pistol.

It appears from the record that appellant and the deceased had been married about six months at the time of the homicide. Appellant seems to have been extremely jealous of her and on two previous occasions had mistreated her. About a week prior to the unfortunate affair, appellant struck her on the head with a beer bottle and inflicted painful injuries upon her which caused her to leave him and go to the home of her sister, Garvine Simms. About midnight of June 12, appellant, armed with a pistol, went to Garvine Simms' home and asked to see his wife. Upon being admitted, he asked the deceased to come outside; that he wanted to talk to her about matters which he did not care for the others present to hear. At first she declined to comply with his request but finally did so. When they had been out of the house for only a few minutes, he shot her five times and then fled from the scene. He was apprehended by the officers on the following night.

By bill of exception number one, appellant complains of the following remarks by the district attorney in his closing argument: "Now they talk about the State and its officers coming out with a confession and say you can bet your bottom-dollar that the State will have a confession. Well, gentlemen the only way I know how to find out about anything is to ask the fellow who knows about it and the minute one of these attorneys enters the case you couldn't prize his client's mouth open with a crowbar."

Appellant objected to the argument on the ground that it was a reference to his failure to testify. We do not so regard it. Counsel for appellant was discussing appellant's confession and the time and manner in which it was obtained. It appears that the confession was obtained at a time when appellant had not yet retained counsel. Consequently, the district attorney, in reply to the criticism of appellant's counsel, made the remarks complained of. The district attorney was not, as we understand the record, referring to appellant's failure to testify, but to the fact that no confession could be obtained after the attorneys in the case were employed. It was merely a discussion of the time and manner of obtaining the confession and not his failure to testify. Such, we believe, is the only logical conclusion to be drawn therefrom. Especially is this true when the subject of discussion and the surrounding facts are considered together. See Boone v. State, 90 Tex. Crim. 374; Gaskin v. State, 119 Tex.Crim. Rep.; Opp v. State,103 S.W.2d 748.

By bill of exception number two, appellant complains of the action of the court in overruling his motion for a new trial based upon the alleged misconduct of the jury. Appellant offered the testimony of three jurors in support of his allegations. Mr. Drennan, one of them, testified in substance: "I heard a statement by some member of the jury, don't know who it was, that 'if we don't give him more than 25 years, he will be back in seven or eight years and may shoot some other folks.' "

Fred Simmons testified to the same effect. B. F. Meckel testified: "I heard a statement made by some member of the jury: 'He is just a negro, let's send him up; if we give him 25 years, he will be back in seven or eight years and may shoot some other folks.' "

It is noted that all three of these jurors testified that they tried him exactly as they would have a white man; that they based their verdict upon the evidence from the witness stand and the law submitted to them by the court. Hence, no prejudice on the part of the jurors against appellant was shown. Their verdict is not such as would indicate prejudice, for they assessed his punishment at forty-five years when, under the law and the evidence, they could have assessed his punishment at death or ninety-nine years. In support of what we have said, we refer to the case of Foster v. State,100 S.W. 1159.

Appellant has cited a number of authorities which he contends support his contention. We have examined all of them and find that they are distinguishable from the case at bar by the facts involved.

Moreover, it appears to us that it was an attempt to impeach the verdict of the jury. We have many times held that a jury could not impeach their verdict. See Chant v. State, 73 Tex. Crim. 345; Powell v. State, 187 S.W. 334; Watson v. State,199 S.W. 1113.

Furthermore, the motion for a new trial is not sworn to. See Brice v. State, 72 Tex.Crim. Rep.; Gorrell v. State,164 S.W. 1012.

All other matters complained of by the appellant have been examined by us and are deemed to be without merit.

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

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.