Keith v. State

Appellant insists that we were in error in the disposition of the question raised by his first bill of exception. The record shows that Dr. Ballard, the father of the deceased, had the following conversation with appellant about three weeks before Otis Ballard was killed:

"I asked Paul Keith if he had been down to Jefferson to see Otis, him and Clem Gray and he denied that he had been down there and I told him that I had a letter from Otis, stating that he had been down there and he still denied going and I told him that I had a letter right there in my pocket from Otis that stated that Paul Keith had been down there with Clem Gray. In that same conversation Paul Keith asked me if Otis was going to be a witness against him in a burglary case when Lilienstern Camak's store was burglarized and asked me if Otis had confessed that business and I told him that Otis had confessed and would be a witness in that case for the state and Paul asked me what in the hell did he do that for, and I told him that Otis wanted to come out from all of his troubles and take his punishment and come clear of it all."

The bill of exception sets out a part of this evidence and complains at the reception of the statements by Dr. Ballard as to the contents of the letter he claimed to have received from deceased. It will be observed that it was all a part of the conversation the witness had with appellant. The contents of the letter, nor whether it had in fact been received, was not the inquiry. It was no more than if appellant had been told by witness that his son, said Gray, and appellant had been to see him. The learned trial judge was probably more liberal to appellant than the law demanded when he withdrew from the jury the statement to appellant as to what was in the letter, but having done so we think appellant is in no position to complain.

We think no error is shown by bills 4, 5, 6 and 7. They relate to the movements and declarations of Gray and McKinley, testified to by Kemp both before and after the killing. As stated in our original opinion, by various counts in the indictment both Gray and McKinley were alleged to have been the principals in the killing, with appellant as an accomplice. All of the testimony objected to was pertinent to show who did the actual killing. Gray's threats against deceased, and all of his acts before the killing having relation to it, and those subsequent were admissible for that purpose, the same as if Gray had been on trial. The court limited the evidence to its legitimate purpose. (See authorities collated under Sec. 725, Branch's Ann. Tex. P. C.)

Appellant insists that the reception of the evidence complained of in bills nine and ten was erroneous and hurtful. Kemp testified to all the incidents occurring subsequent to the homicide about the removal and secretion, of the body and clothes, and destruction of other evidence of the crime. This was admissible. It is so held in Gray's case, 99 Tex. Crim. 305, S.W. ___, and the authorities therein cited. The evidence complained of in the bills mentioned was a recital by other witnesses of what they subsequently discovered indicating that the body of deceased had been removed or dragged and corroborated Kemp upon this point. Kemp was an accomplice. It was incumbent upon the state to substantiate his story by any legitimate testimony at hand. Independent of that the evidence was properly received as is manifest from the opinions in Gray's case, supra, and Simpson v. State, 97 Tex.Crim. R.,263 S.W. 273. Complaint that the evidence was inflammatory and prejudicial is not tenable, if it was otherwise admissible. What is here said also disposes of bills 13, 14, 15, 16, 21 and 22.

We find no merit in the renewed contention that error was committed in permitting the state to introduce a part of appellant's statement made to the county attorney. The parts omitted by the state were put in evidence by appellant. See authorities annotated under Sec. 91, Branch's Ann. Tex. P. C., also Giles v. State, 43 Tex.Crim. R., 67 S.W. 411; Shaw v. State, 73 Tex.Crim. R.; Davis v. State, 85 Tex.Crim. R.,209 S.W. 749; Parker v. State, 91 Tex.Crim. R., 238 S.W. 943.

The indictment contained a count charging George McKinley as a principal in the homicide. It was proper to admit McKinley's statement upon this issue. After the court had concluded to submit the case only upon the count charging Gray as a principal, before appellant could have just ground of complaint at the admission of McKinley's statement he should have presented a motion to withdraw said statement from consideration of the jury. In discussing this point in our original opinion we adverted to the fact that the court instructed the jury that McKinley's statement was admitted for the jury's consideration in passing upon the guilt of Gray and that they could not consider it for any other purpose. In his motion appellant refers to this charge and urges that it was an erroneous instruction in that no statement of McKinley made subsequent to the homicide was admissible to show the guilt of Gray. Appellant may be correct in this contention. However, we find no exception to the charge in regard to the matter now complained of. From the objections to the charge found in the record we conclude that the court must have originally prepared it upon the theory that if either Gray, Kemp or McKinley were principals and that appellant was an accomplice as to either of them he would be guilty. If our conclusion is correct the charge was modified in response to objections as it submits only the theory that Gray was a principal in the killing. Of course, the charge as originally prepared is not before us, but we quote from the objection to it what purports to be a copy of the paragraph of the charge then before counsel:

"For the purpose of showing the guilt of Clem Gray, Burl Kemp and George McKinley the state has offered evidence for the purpose of showing their guilt, and you are nistructed that you can not consider such evidence in passing upon the guilt of defendant as an accomplice. You may consider the same in determining whether or not Clem Gray, Burl Kemp and George McKinley are guilty of the murder of Otis Ballard, as alleged in the bill of indictment herein."

Objection to this was urged upon the claim that it was upon the weight of the evidence. There is not now in the charge any such instruction as indicated by the objection quoted. If objections were made to the charge after its modification the record fails to show it. Therefore, the complaint now urged is not available under Arts. 658 and 660, C. C. P. 1925.

Appellant makes general complaint in his motion that the charge authorized the statement of McKinley, an accomplice, to be appropriated by the jury for the purpose of corroborating Kemp, another accomplice. We have not discovered in the charge anything which could be so construed. In one paragraph the jury was instructed that:

"The evidence, statements or declarations of one accomplice can not be considered as corroboration of another accomplice. And the statements or declarations of an accomplice, made outside of court, can not be considered by you in corroboration of his testimony in court."

Another paragraph is:

"You are instructed that you can not consider any statement made by any person out of the presence of the defendant Paul Keith, if you find any such statements were made, unless you believe from the evidence beyond a reasonable doubt that there was an agreement and conspiracy made between the defendant and the said parties before the offense, if any, was committed by the said Clem Gray to kill Otis Ballard."

In another paragraph the jury were specifically told that, although they might believe Gray intended to kill Ballard, yet if the purpose of appellant in bringing about a meeting between them was to secure the absence of Ballard as a witness in a case then pending against Gray but without knowledge of appellant of Gray's intention to kill Ballard, appellant would be entitled to an acquittal, the charge thus appearing to protect appellant's rights under the issues raised.

The contention is again urged that the judgment should not stand because it is claimed the evidence was insufficient to authorize a finding that appellant knew of the unlawful purpose of Gray to kill deceased. The facts will be found stated in some detail in Gray v. State, 99 Tex.Crim. R., and in McKinley's case, this day decided on rehearing. We have again carefully reviewed the evidence with this point in mind. The statements of Gray, McKinley and appellant raise the issue that the efforts of McKinley and appellant to bring about a meeting between Gray and deceased was only for the purpose of giving Gray an opportunity to induce deceased to leave the country, thereby preventing him from being a witness. We are not prepared to say the jury should have accepted this theory as true. Appellant himself was interested in getting deceased out of the way to prevent his testimony in a charge of burglary then pending against appellant. The evidence is clear that both appellant and Gray knew that deceased had confessed and was expected to testify for the state in the cases against each of them; that they resented the fact that he had turned state's evidence and had refused to leave the country; that they also knew of his father's efforts to prevent deceased from leaving. Appellant and McKinley were both instrumental in bringing about a meeting between Gray and deceased at the school house on the night of the homicide. Their actions prevented other parties from knowing this. They reported to the officers and others after the homicide that deceased had been left at the school house talking to a woman, when in fact they knew he had been left there with Gray. Appellant expressed little surprise or concern at the discoveries next morning which indicated a murder had been committed. All of these matters were for the consideration of the jury. We think it beyond our province to say they were unauthorized in concluding that appellant was aware of the unlawful purpose of Gray to take deceased's life. They were not bound to accept the statements of appellant or other interested parties upon this issue. Hawkins v. State, 270 S.W. 1025; Key v. State,270 S.W. 1027; Horak v. State, 273 S.W. 601. The truth of their testimony was a question for the determination of the jury under all the facts and circumstances in evidence.

The motion for rehearing is overruled.

Overruled.

Presiding Judge Morrow notes his dissent, being of opinion that the evidence is insufficient. His views are expressed in the opinion written by him in McKinley's case.

HAWKINS, Judge.