Gatlin v. State , 113 Tex. Crim. 247 ( 1929 )

Conviction for murder; punishment, fifteen years in the penitentiary.

Appellant killed his son-in-law whose wife, a fifteen year old girl, testified that the day before the killing she had told appellant of the fact that she was pregnant by deceased before they married, and that since they married he had mistreated her. Her mother was also a witness for appellant. The day following the conversation above referred to appellant shot and killed deceased while in his place of business. Appellant claimed the killing was in self-defense. State witnesses testified that deceased was at work in a tailor shop when appellant entered; that he arose and greeted appellant, and walked toward him with his hands out and nothing in them, and that he made no hostile motion. One bullet entered the front of the body of deceased and three entered from the back. According to the State's testimony, when the first shot was fired deceased fell and rolled under a table, and the other three shots were fired after he was down.

We discuss the complaints of procedure in the order same are briefed by appellant. Bonnie Miles, wife of deceased and daughter of appellant, was a very material defense witness, her testimony furnishing a motive for the killing, which might satisfy the jury that same was not with malice aforethought. Her attitude toward deceased and the killing was a proper subject of inquiry. The State asked her if her husband did not have a $3,000.00 insurance policy at the time of his death, payable to her, which she had collected since. This was objected to and the point saved in a bill of exceptions. She admitted this to be a fact. As a general proposition, any testimony supporting the theory of an improper motive which might affect the mind of a witness is never regarded as immaterial or collateral. Green v. State, 53 Tex. Crim. 473; Bennett v. State, 28 Texas Crim. App. 540. See Sec. 163, Branch's Annotated P. C. for collation of authorities. This witness had financially benefited by the slaying of her husband by appellant. We are not prepared to say that the jury might not fairly infer from such proof a bias on the part of the witness which might affect her testimony. Another bill complains of the asking of the mother of said witness if she knew of such insurance policy before the homicide, but the answer being in the negative, we would in any event hold the bill to show no injury.

We find in the charge of the court no sort of limitation of the appellant's right of self-defense, and in such case we uniformly hold it not error to refuse to charge on his right to arm himself and seek an explanation. The bills of exception complaining of the refusal of special charges seeking to have the jury told that appellant had the right to arm himself, etc., shows no error. Authorities in point are Williford v. State, 38 Tex.Crim. Rep., and cases cited in Sec. 1950, Branch's Annotated P. C.

Special charge No. 6 sought to have the jury told that if deceased had made vulgar or insulting remarks to or about the daughter of appellant, or if he had committed acts of violence upon her, and such facts were known to appellant, and thereafter he went to where deceased was and when he saw him there was aroused in his mind sudden passion, etc., such as rendered it incapable of cool reflection, and while in such state of mind he shot and killed deceased, then such fact should be considered by the jury in determining the amount of punishment. Such charge was manifestly on the weight of testimony, and sought to have the court instruct the jury that the sight of deceased might create sudden passion, etc., on the part of appellant. We have no disposition to attempt by any opinion to bring back into the body of our law the elements of manslaughter which have been eliminated by the new murder statute. Appellant made no claim that he shot deceased because of any vulgar or insulting conduct. Under our present murder statute it is the duty of the court to admit in testimony all facts showing the relations of the parties and mental status of the defendant, and he is then to give the jury a correct instruction on malice aforethought, and to tell them that if they believe the homicide to have been with malice aforethought, the punishment shall be as stated; and if the homicide be without malice aforethought, it shall also be otherwise as stated.

Five special charges were asked and given instructing the jury not to consider certain matters of argument made by the representatives of the State. It is here urged that the error of such argument could not be thus cured. We have considered each of the bills presenting these complaints and believe none of them present argument capable of any injury to appellant. As illustrative, we give what is apparently the most injurious of these. The district attorney said: "Thirteen years ago the defendant had to give up his wife and baby because he could not live with his wife." The record elsewhere reflects that at about the time mentioned appellant and his wife were divorced, she taking the child mentioned. The remark of the district attorney would seem more reflective on the wife, and, as stated, of no possible injury to appellant.

We find bills of exception complaining of the refusal of seven special charges, relative to argument. Each bill is in form the same, in that each sets out the charge requested, and further that same was asked because there was no testimony supporting such argument, and same was prejudicial. There is no showing or certificate in any of Said bills that the argument was in fact made, or that when made it was then objected to, and an exception taken. Blackwell v. State, 107 Tex. Crim. 58; Smith v. State, 104 Tex.Crim. Rep.. For aught this court knows from the bills or the record the trial court may have refused said charges because he did not think any such argument had been made. Nor do we find in any of said bills any showing of facts or circumstances surrounding or leading up to or connected with such argument, if made. Moore v. State,107 Tex. Crim. 287.

In his motion for new trial appellant set up that juror Cornelius was unfair and had expressed an opinion prior to the trial that appellant ought to be hung. Upon the hearing of this motion the court heard two witnesses, J. W. Long swore that a few days after this homicide he and juror Cornelius were talking of same and Cornelius said Gatlin ought to be hung. Witness said he was working at a feed store at the time, and after the trial he told a brother-in-law of appellant of this conversation. On cross-examination the witness admitted he could not recall what else, if anything, Cornelius said in this conversation, or what he, witness, said. Cornelius took the stand and emphatically denied having made any such statement and affirmed that when taken as a juror he had no opinion of appellant's guilt. In this condition of the record the trial judge overruled the motion and we think was within his discretion in so doing. For this court or the trial court to hold that in case a man could be found to affirm that a member of a jury had said to him that the accused was guilty, — and this affirmation be in terms denied by the juror, and there be but these two witnesses before the trial court, that in such case the court below would be wrong in deciding that the unfairness of the juror had not been shown, — would be setting a most dangerous precedent, and one to which we are unwilling to give our sanction.

The charge given in this case seems eminently fair and full; in fact we find therein matters deemed by us to be more favorable to appellant than the law entitles him to. The State witnesses make out a case of murder under circumstances showing deliberation and absence of emotion, excitement or other circumstances which might show a murder without malice aforethought. The jury heard all the details of the treatment of the wife of deceased, appellant's daughter, as claimed by the defense, and after considering the evidence under the favorable charges above referred to, they have returned a verdict against appellant. We have considered the other matters in the record not briefed and are of opinion that no error appears in any of them.

The judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.