McCoy v. State , 106 Tex. Crim. 593 ( 1927 )

The offense is murder, punishment fixed at confinement in the penitentiary for life.

Early in the morning of Monday, the 28th of July, 1924, J. W. Rowell, Sr., a man of about ninety years of age, while out in the lot, received blows upon the head which rendered him unconscious, in which condition he remained until his death which soon followed from the effect of the blows. The state took the position that the appellant was the offender and that the motive was robbery. Appellant interposed the defense of alibi, claiming to have been in the town of Shreveport, Louisiana, at the time the deceased was injured.

From bill No. 1, as qualified, it appears that at the previous term of court a motion to quash the indictment was made upon the ground that there was no indictment returned. Upon the hearing of the motion it was shown that the indictment was regularly returned into court, but that the clerk failed to place his file mark upon it. The court overruled the motion and directed that the clerk enter his file mark nunc pro tunc. There was no error in overruling the motion when it was renewed upon the present hearing. Cauthern v. State, 66 S.W. 96; Skinner v. State, 141 S.W. 231.

Appellant interposed the plea of former jeopardy based upon the ground that the court, on a former occasion, after impaneling the jury and the plea had been entered, had discharged the jury on account of the sickness of one of the jurors. This is authorized under certain circumstances by Art. 680, C. C. P., 1925, and from the bill it appears that the juror was sick and that his discharge was with the express consent of both appellant and his counsel. Therefore, no error is shown. Arcia v. State, 28 Tex.Crim. App. 198; Abbott v. State, 94 Tex. Crim. 31; Torres v. State, 91 Tex.Crim. Rep..

The complaints in bills Nos. 10 and 11 of the failure to receive certain evidence and to submit the issue raised by the plea of former jeopardy to the jury show no error for the reason that the court properly held that the plea itself raised no issue of fact.

An application for a continuance was made and overruled, as shown by bill No. 3. Apparently it was a subsequent application. As qualified, the bill shows that such material witnesses as were absent and for whom diligence had been used, appeared upon the trial. According to the bill as qualified, the court did not abuse its discretion in refusing to grant the motion.

It appears from bill No. 4 that state's counsel asked the witness T. D. Rowell the following question:

"State whether or not you know that purse had been found."

The witness answered:

"No, sir; it was never found. He always changed his purse when he changed his clothes, and when he would go out to work and change his clothes he would change his purse, and when he changed back he would change his purse because he always had negroes around and he always changed his purse."

Objection to this question and answer was made upon the ground that it was not admissible unless it was shown that appellant knew the custom of the deceased. In qualifying the bill the court stated that it was received in connection with other evidence upon the issue of robbery as the motive for the offense. The bill is quite meager and as qualified shows no error. It fails to give any of the surrounding facts such as would enable the court to determine its merits. Especially is this true from the accepted statement in the qualification that there were other facts introduced on the issue of motive. Nothing in the bill discloses whether the appellant was acquainted with the other facts or what they were, nor does it appear that the appellant did not know of the habits and customs of the deceased. This omission is not supplied by the mere recital of the ground of objection. Some further remarks on the subject are made in the discussion of bill No. 7.

From bill No. 5, as qualified, it appears that for many years it had been the custom of the deceased to go to the barn very early every morning to feed his horse; that he was found early in the morning coming from the direction of his lot, wounded and unconscious. The bucket in his hand was crushed and his fingers bruised, and upon the side of his head there were deep wounds. The condition of the bucket and his hand indicated an effort to ward off the blows. From some of the testimony the suggestion came that his injury was due to a kick of the horse. It was the theory of the state that the wound was inflicted by a stick in the hands of the appellant. At the barn was found a long stick with blood stains upon it. The hat worn by the deceased at the time of his injury was exhibited to the jury over the objection of the appellant. The hat was without blood stains, but its condition was such as, in the opinion of the learned trial judge, tended to solve the controverted issue mentioned, namely, whether the blow was due to a kick of the horse or the striking with a stick by the appellant. It is well settled that under such circumstances the testimony mentioned was not improperly received. See Branch's Ann. Tex. P. C., Sec. 1855, and the precedents cited; also Trigg v. State, 99 Tex. Crim. 376.

It appears from bill No. 6 that while T. D. Rowell was testifying in behalf of the state he was asked on cross-examination by appellant's counsel, the following:

Q. "Do you know a party named G. W. Roberts?"

A. "Yes, sir."

Q. "Isn't it a fact that you had employed him as a detective?"

The objection to this question was sustained. According to the bill, the witness would have given an affirmative answer and would have stated that Roberts had been active in the prosecution. From the bill it appears that appellant contended that the materiality of this testimony consisted in the fact that Roberts' wife had given testimony favorable to the state and that the answer expected would have borne upon the animus of the wife of Roberts. In qualifying the bill the court said that he believed the testimony was later admitted on the trial. This qualification would seem to nullify the bill, if it otherwise had merit. However, it appears that Roberts was not a witness in the case. Moreover, the procedure of the nature mentioned is of doubtful validity. If Roberts had testified or his wife had testified, the inquiry of either might with propriety have been made. So far as the record shows the inquiry might have been available as bearing upon the animus of the witness Rowell. However, the bill fails to show that he gave any damaging testimony against the accused, and further, it affirmatively appears that the court was advised that the testimony was desired for a different purpose and not to discredit the witness Rowell. As the matter is here, we think it shows no error; at least, no material or hurtful error.

From bill No. 7 upon the subject of the custom of the deceased, it appears that the witness named above was asked by state's counsel:

Q. "Do you know anything about your father collecting money?"

A. "Yes, sir; I do."

Q. "How did he do it?"

A. "Well, I settled with him on the first of every month. I paid he and myself off the first."

Objection was made upon the ground that it was wholly immaterial. This was not admissible until it was shown that the appellant had knowledge of it. The remarks touching bill No. 4 is also pertinent to this one. See Murf v. State, 281 S.W. 1077; Coulson v. State, 277 S.W. 135; Baxter v. State,81 Tex. Crim. 234; Art. 2237, Vernon's Rev. Civ. Stat., 1925; Art. 667, Vernon's Tex. C. C. P., Vol. 2, p. 364, note 23. Besides, the fact that it was the custom of the deceased to possess money and carry his purse in his pocket, and its absence at the time he was found after the injury might, under some circumstances, have been very cogent testimony upon the issue suggested in the qualification of Bill No. 4. See Mœhler v. State, 98 Tex.Crim. Rep.; Lovel v. State, 93 Tex. Crim. 615. Apparently it was admissible as tending to rebut the theory that the deceased was injured by the kick of a horse. In the absence of something in the bills showing that the peculiar circumstances were such as to render the testimony inadmissible, the presumption must be indulged that it was properly received. See Bozanno v. State, 60 Tex. Crim. 507; Nowels v. State, 100 Tex.Crim. Rep.; Dover v. State, 102 Tex.Crim. Rep..

Bill No. 8 complaining that the court permitted the recall of a witness after the state had closed its evidence in chief and before the appellant had finished with the introduction of his testimony shows no error. This was within the discretion of the trial court, and the bill shows no abuse of it. The same may be said of the complaint in bill No. 13 of allowing the state to introduce in rebuttal evidence which could have been introduced in opening the case. Art. 642, C. C. P., 1925; Barnard v. State, 87 Tex.Crim. Rep.; Vineyard v. State, 96 Tex. Crim. 401; Johns v. State, 98 Tex.Crim. Rep..

According to bill No. 9, in support of his theory of alibi, appellant claimed to have assisted in taking Annie May Smothers to the Charity Hospital in Shreveport, Louisiana, for treatment on Sunday night preceding the homicide on Monday following. The state introduced Dr. J. M. Moseley and exhibited to him what purported to be a record of the Charity Hospital of Shreveport, containing an entry to the effect that "Annie May Smothers came into the hospital at Shreveport, Louisiana, at 10 o'clock p. m., July 28, 1924," which was Monday night. As a predicate for the introduction of this record, Dr. Moseley testified that the record was made by Dr. Workhouse, who was at that time working at the Charity Hospital as an interne and that it was his duty to make a record of the date that every patient entered the institution, giving the name of the patient and the injuries or disease complained of. He testified that the entry was in the handwriting of Dr. Workhouse, with which the witness was familiar, and that Dr. Workhouse was not, at the time of the trial, in the employ of the hospital mentioned, but resided in the State of Mississippi; that the making of such entries was required of Dr. Workhouse. The witness said that at the time the entry was made and at the time of the present trial he was superintendent of the Charity Hospital at Shreveport, Louisiana, and controlled the records thereof; that the Charity Hospital was a state institution. To the introduction of the part of the record mentioned the appellant objected for the following reasons:

"Because the defendant should have the right to be confronted with the witnesses against him and because the witness testified that he did not make the record offered in evidence, and was not custodian of the record. And further, because that the record entry is hearsay, having been made by some other person than the witness."

We think the testimony was not subject to the objections addressed to it. One of the exceptions to the rule excluding hearsay testimony is that which sanctions the receipt in evidence of "regular entries in books of record." Wigmore on Evidence, Vol. 2, Secs. 1521-1533. To entitle its receipt in evidence, the entry should be regular, that is, it should be made in the course or a part of a system of entries and not a casual or isolated one and it should be contemporaneous. See also Wigmore on Ev., Vol. 3, Secs. 1647-1650. Proof of the predicate should be made by the best evidence available, but if the entrant is absent from the jurisdiction of the court the proof may be made by another. See Wigmore on Ev., Vol. 2, Sec. 1521; also Leach v. State, 80 Tex.Crim. Rep.. An entry made by a public officer in pursuance of his duty may be likewise received. Wigmore on Ev., Vol. 3, Sec. 1632. As a predicate for the introduction of the entry as above defined, where the person who made it is not available as a witness, it should be proved that it was the habit and custom of the entrant to make proper and accurate entries. If, however, the entry was made by a public officer in the pursuance of his duty as such, proof of habit or custom is not essential, but to be supplied by the presumption in favor of the regularity of the acts of public officers. The hospital was a state institution and it was the duty of the entrant to make a true entry of the name and date that each patient was received therein. In the bill there is no objection upon the ground of an absence of proof of the habit or custom of Dr. Workhouse to make proper and accurate entries. If the record was a public one, the predicate was sufficient; but if not a public record, the court was not in error in refusing to sustain the objections made, there being no objection upon the ground of the absence of proof of habit or custom, that objection is not available on appeal.

Both the deceased and appellant resided in the town of Jefferson, the county seat of Marion County. Marion is a border county adjoining Louisiana. The distance from Jefferson to Shreveport, Louisiana, is not, so far as we have discovered, definitely stated. However, it does appear from the testimony that they were connected by rail and by road traversed by automobiles. Appellant had lived all his life in Jefferson. According to his testimony, he came from Shreveport to Jefferson on Thursday night preceding the homicide on Monday morning. After spending the night and part of the following day with Louis Stephens, they went to Shreveport, traveling partly on foot and partly by catching rides in automobiles and on freight trains, reaching Shreveport about 7 o'clock on Friday evening. In his testimony he described his movements and those of his companion in Shreveport, asserting that on Sunday night he assisted in taking Annie May Smothers to the Charity Hospital. Witnesses for the state testified that he was seen in Jefferson on the morning on which the homicide took place. The entry on the record of the Charity Hospital to the effect that Annie May Smothers became an inmate of the hospital at 10 o'clock at night on the 28th of July is in conflict with the appellant's theory to the extent that the hospital entry appears to have been made on Monday night, and he claims that the woman was taken to the hospital on Sunday night. It seems obvious that the entry on the hospital record is not necessarily incompatible with the appellant's presence at Jefferson at the time of the homicide. Apparently the distance between Jefferson and Shreveport is not such as to preclude his presence at Shreveport on Sunday night at 10 o'clock and at Jefferson on Monday morning at 5 o'clock; nor does it preclude his presence at Jefferson on Monday morning and at Shreveport on Monday night. As stated above, there is much other testimony combatting the appellant's theory of alibi, including the testimony of two witnesses to the effect that appellant admitted that he struck the deceased; nor is the hospital record the only evidence that Annie May Smothers entered the hospital on Monday night. The police records introduced in evidence and the testimony of the arresting officers are to the same effect.

According to bill No. 14, after Dr. Moseley had testified as shown in bill of exceptions No. 9, identifying the entry in the record of the Charity Hospital of Shreveport, Louisiana, the court was not ready to rule on the admissibility of the entry mentioned in bill No. 9. The witness, who resided in Louisiana, insisted on returning and taking with him the record which he said was a public record. Under the court's direction and with the aid of counsel and witness, an examined copy of the entry was made. The witness took the original record with him, leaving the examined copy. The complaint of the use of the latter in lieu of the original when the court finally ruled the entry admissible in bill No. 14 is deemed not well founded. Greenleaf on Evidence, Sec. 91; Wigmore on Evidence, Vol. 2, Sec. 1273; Starkey on Evidence, Vol. 1, 189.

Bill No. 15, complaining of the alleged improper argument, as qualified, shows no error.

Bills Nos. 16 and 17 refer to the testimony of the witness Allen touching a certain affidavit made against him, the contents of which affidavit the bills fail to reveal.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.