Spadachene v. State , 137 Tex. Crim. 26 ( 1938 )

The conviction is for murder; the punishment, confinement in the state penitentiary for a term of fifteen years.

The record shows that the appellant was the owner and operator of a beer tavern in connection with which food was served. The deceased, O'Grady, and his companions, Ethridge and McCoy, were employees of a circus which, on the date in question, was in the town of Bryan. Ethridge and the deceased went to the appellant's place of business and ordered some food and drinks. Some unpleasantness arose between the deceased and one J. D. Roberts which resulted in an altercation in which the deceased slapped Roberts. Appellant remonstrated with the deceased and restored order. Later on McCoy came into the place and a difficulty arose between the deceased and McCoy in which beer bottles were thrown. McCoy was struck on the head as he was going out of the door and was knocked down. Another bottle was hurled through a plate glass window, breaking it. At this juncture, deceased and Ethridge left the place. In doing so, they stepped over the body of McCoy which was lying in the doorway. After they had gotten out on the sidewalk, appellant followed them and opened fire with a pistol. The first shot struck near their feet and the second took effect in the side of the deceased, resulting in his death in a very short time.

It was the State's theory that the killing on the part of the appellant was entirely unjustified and was done while the deceased was leaving the premises. The defensive theory, as testified to by appellant and corroborated by other witnesses, was that appellant attempted to quell the disturbance that McCoy and the deceased had created. That he heard the bottle crash through the window, but did not know who threw it. That as he looked around, he saw McCoy lying in the doorway and the deceased and Ethridge making for the doorway. That he interceded and requested them not to kick McCoy any more. Whereupon the deceased caught him by the shirt and jerked him out on the sidewalk and struck at him with something. That he jerked loose from the deceased, drew his gun and ordered him to stand back, but the deceased continued to advance upon him and he then fired one shot into the street. Notwithstanding this admonition, the deceased continued to advance and he then shot him. Appellant also testified that he did not know who threw the bottle through the window, but that it happened before Ethridge and the deceased walked out.

Bill of exception number one reflects the following occurrence. During the examination of prospective jurors on their voir dire and after the juror, Frame, had been accepted by both the State and the defendant and while Frame was being sworn in, the State challenged the juror. The court sustained the challenge and appellant objected. The court overruled the objection and appellant excepted. The bill fails to show whether the State peremptorily challenged the juror or whether it challenged him for good cause. In the absence of any showing in the bill to the contrary, the presumption obtains in favor of the correctness of the court's ruling; that is that the State challenged the juror for good cause not known to it before its acceptance of the juror. If the bill had shown a peremptory challenge by the State, a different situation would have been presented. See Baker v. State, 3 Tex. Crim. 525. In all of the cases cited by appellant, including the above named case, it appears that a challenge for good cause may be made after the juror is accepted and before he is impaneled. There is nothing in appellant's bill of exception which controverts the presumption that the court's ruling was legally correct and justified by the law.

By bill of exception number seven, appellant complains of the action of the trial court in permitting the State to recall appellant's witness, Mrs. Pearl Mimms, for the purpose of laying a predicate for impeachment. It is true that they did contradict her by Mrs. Boyd. However, it is a well recognized rule of long standing in this State that a defendant, or any other witness, may be recalled for further cross-examination, or for the purpose of laying a predicate to impeach said witness. The recalling of the witness does not, of itself, make him the witness of the party recalling him. See Branch's P. C., Sec. 354 and authorities there cited. See also Butler v. State, 7 Tex.Crim. Rep.; Hunter v. State, 8 Tex.Crim. Rep.; Treadway v. State, 144 S.W. 655; Bolden v. State,178 S.W. 533.

The matter complained of in bill of exception number five fails to reflect reversible error. It appears from the bill that in response to a question by the district attorney, appellant answered that he did not know whether or not he had been indicted for the offense of an assault with intent to murder. However, the State promptly withdrew its question and the court instructed the jury not to consider it for any purpose.

By bill of exception number ten, appellant complains because the court declined to instruct the jury with reference to the law of appellant's right to protect his property from destruction. This issue was not raised by the evidence. The uncontradicted testimony shows that the window was broken before the deceased and Ethridge left appellant's premises. The deceased and Ethridge had gone out onto the sidewalk and appellant followed them and there made the attack which resulted in the death of the deceased. At that time, appellant did not know who had broken the window and no act on the part of the deceased was shown which indicated that he was attempting to destroy any of appellant's property.

All other matters complained of with reference to the Court's charge and the admission of testimony have had our most careful consideration, but we fail to discover any reversible error. The court's charge is adequate and a fair application of the law upon the issues raised by the testimony.

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.