Grundy v. State , 116 Tex. Crim. 442 ( 1930 )

Offense, murder; penalty, twenty-five years in the penitentiary.

According to the State's testimony appellant shot June Hilburn three times with a pump shotgun on the streets of Wichita Falls. The State's testimony indicates that Hilburn was doing nothing at the time which justified the appellant in his action, and without tediously reciting it, the evidence for the State makes out a case of murder.

Appellant's defense was insanity and he supported same with much cogent testimony, but the record as a whole presented a jury question whose finding we are without authority to disturb.

Appellant made application for a continuance to secure the testimony of Dr. Love by whom it was averred in substance that he could prove that the appellant's sister was insane at and prior to the time of her death and starved herself to death. The Court overruled this application and stated at the time that he would require the State to admit that the appellant's sister was insane at the time of her death as alleged, but refused to require an admission that she starved herself to death. His action in this regard is made the subject of appellant's Bill of Exception No. 1. Appellant correctly states the rule to be that to avoid an application for a continuance the State must admit not only that the witness will testify as stated in the application but that such testimony is true. Purvis v. State, 106 S.W. 355; Branch's P. C., Sec. 325. However, we regard the Court's announcement as having this effect. The real question was whether the sister of appellant was insane and we do not think the manner of her death could have added anything to the probative force of this admission. In our opinion the Court correctly overruled the application under the conditions above mentioned. McGrew v. State, 31 Tex. Crim. 339; Branch's P. C., Sec. 325.

The Court required a former wife of appellant, who appeared as a witness for him, to testify over objection that she had been married four times, three times before she married appellant. The statement of facts shows that this witness testified that she married appellant, by whom she had no children, but that she had five children at the time. We do not think that such a matter under these circumstances was so prejudicial as to require a reversal. It appeared that she had been married more than once from testimony introduced by appellant before this question was asked her and her explanation of her previous marriages placed her in a more favorable light before the jury in view of her testimony as to the number of children she had when she married appellant. No prejudicial fact was brought out and we fail to perceive how the mere fact of former marriages could have so prejudiced the witness in the eyes of the jury as to affect her credibility in the absence of any prejudicial fact being proven in connection with such testimony.

Jury misconduct is alleged, particularly in that it is alleged and shown that the remark was made in the jury room that appellant was a gambler, which was prior to the rendition of the verdict. Testimony raising this matter is in a somewhat muddled condition and is not entirely clear, but looking to the entire evidence, on motion for new trial, we regard it as raising an issue as to whether or not this remark applied to the appellant or to the deceased, June Hilburn. The action of the judge in overruling appellant's motion for a new trial amounts to an implied finding by the trial court against the truth of appellant's allegations of misconduct and if there is sufficient evidence to justify his action, his decision thereon will not be disturbed on appeal. Shaw v. State, 32 Tex. Crim. 155; Adams v. State, 48 Tex.Crim. Rep.; Allen v. State, 138 S.W. 593. For further authorities, see Branch's P. C., Sec. 574. Under our view of the record an issue was presented as to the truth of the allegations made by appellant as to jury misconduct and there being evidence to support a finding adverse to appellant, the same will not be disturbed.

It is further claimed that there was error in certain prejudicial arguments made to the jury by prosecuting attorneys. The one. apparently most vigorously urged here is the following language shown to be used by private prosecutor, Honorable H. F. Weldon:

"He was my friend. I knew June Hilburn. I am not ashamed to confess that. I can see his mother in Heaven, as she looks to you and asks that you do justice to him."

Appellant cites the case of Wes Ayres v. State, from Cherokee County, opinion handed down April 30, 1930, in which the unsworn statement of the District Attorney of a fact outside of the record was held to be reversible error and it seems to be contended here that prosecutor Weldon made a statement of a prejudicial fact not under oath. We agree with appellant that if private prosecutor had the vision he says he did he shouldn't have divulged his heavenly secret to the jury without having his conscience subjected to as binding an oath as the law could require. We are not able to believe, however, that any jury would seriously think that a lawyer in an ordinary murder case would suddenly lift himself to the spiritual plane of that galaxy of saints mentioned in the Bible and be permitted to peer into that "mysterious bourne from which no traveller has ever returned." To hold that jurors would accept literally as true such a statement would be to impute to them a childish credulity that in this age we know they do not possess. The jurors undoubtedly knew, as we know, that the statement was a mythical word picture, not intended to be taken literally. Such appeals are not uncommon and do not furnish a sufficient basis for reversal, in the absence of something more prejudicial than what this contains.

We have examined all the contentions of appellant and finding no error in any of them, the judgment is affirmed.

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.