Hogan v. State

Conviction for murder; punishment, death.

Appellant was convicted for the murder of his wife. They lived some distance out from the town of Mercedes in Hidalgo County, on a ranch, by themselves; their children being grown. Appellant's wife disappeared about the 16th of November, 1932. She was apparently a very hard-working woman, and assisted her husband in carrying on the work of the ranch, rounding up cattle, milking them, dipping them, carrying on the work of her house, etc., etc. It was shown by testimony that she had been to Harlingen the day before her disappearance and had a permanent wave put in her hair. While engaged in rough work around the ranch she usually wore rough clothing, including a pair of tennis shoes, overalls, etc. Appellant told many stories to account for the absence of his wife. To some persons he claimed that a horse had fallen on her while she was riding the ranch and she was seriously hurt and had been sent to San Antonio for treatment, and had there died. To others he merely told the story that she had gone to San Antonio. To others he said she had gone off and left him without his knowledge, — that they were riding the pasture together and separated at a certain point, he going one way and she the other, and that when he came back to where they were to meet she was not there; that her horse and saddle were there, and that when he got to the house he found her best clothes were gone, together with sixty dollars which had been paid him as earnest money for the purchase of some cattle. To other people who asked him about the 25th of November, 1932, where his wife was and why she did not come to a certain dance, he said she could not get there on account of the mud. After suspicion had become aroused to the point where serious investigation was being made, parties went to the ranch house and found in what looked like a barbecue pit near the house the charred remnants of the best clothes of deceased, which he had told some persons she had taken with her when she left home. In the lot, near a tree, was found a quantity of blood. About December 2nd a large searching party was organized to make a close examination of the ranch. In a dense thicket some distance from the house two Mexicans located a soft place in the ground. It looked like it had been filled in. They gave the alarm and others came. Without going into minute details, buried in a shallow grave the body of a woman was found whose skull had been crushed in by a blow from some heavy instrument. The body had on it tennis shoes and rough clothes, a gold band wedding ring, etc. A sack was over the head of the corpse; a hard twisted rope was apparently around her neck. From scars on the body and from many other marks of identification a number of witnesses testified that the body so found was that of the deceased. Appellant's trial and his conviction followed. Many criminative circumstances were in evidence which we do not attempt to set out.

Appellant took the witness stand in his own behalf and testified that his wife left home on the 16th of November, and that he did not know what had become of her. The evidence is very voluminous and embraces the testimony of many witnesses who testified with such positive identification and certainty of description and connection of details, that we have no hesitation in saying the testimony was ample to support the jury's conclusion that appellant was guilty of the murder of his wife.

There are many exceptions found in the record, each of which has received our careful attention in view of the gravity of the punishment, and of the desire on the part of this court to overlook nothing in our effort to ascertain if this case was fairly tried. To take up the bills of exception appearing in the record, ranging from bill of exceptions No. 1 to No. 23, would require an opinion of altogether unnecessary length, and a discussion of many matters worthy of only mention. A number of bills of exception complain of the fact that testimony was given of a search of the premises of appellant and its result; objection being that no search warrant was had. These witnesses testified, as did appellant himself, upon the trial that they had his free and entire permission to search the premises. None of these bills present error.

A stick or club with a spot of blood on the end of it was found near a corner of the shallow grave in which the body was interred. This blood was examined and shown by testimony to be human blood. Several bills of exception are leveled at the introduction of this club, and the opinion of witnesses that it was such instrument as that a blow from it might crush the skull, and to the fact further testified to that the blood on same was human blood. We find nothing in these bills of exception at all erroneous, or appearing to call for discussion.

A great many bills of exception were reserved to the testimony of witnesses upon the question of identification. None of these bills present error. From scars upon the body, and from the condition and color of the woman's hair, the tennis shoes found upon her feet, the garments upon the body, the ring upon her hand, etc., many witnesses, who viewed said body, were permitted to express their conclusion, based on these matters, that it was the body of appellant's wife, the deceased in this case. Many of the witnesses were very positive in their identification. It appears in the record that after the disappearance of his wife appellant was asked to describe what clothes she had on when she left, and he said she wore rubber boots and did not have on the tennis shoes which she ordinarily wore. These he said had become worn out and discarded. Some of the children of deceased were used as witnesses, and in the course of their examination were asked if they viewed the remains after they were found, and after having answered said question in the negative, they were asked why they did not view said remains. The answer of each appeared to be substantially that they preferred not to look at her body at that time but to remember her as they had seen her and known her. We see nothing in these bills capable of prejudicially affecting the rights of appellant. As the children of deceased, it would be reasonable for them to have viewed her remains after death, and if there was no testimony upon the point, there might have been raised a question in the minds of the jury as to whether or not these children were of opinion it was their mother. There would seem to be no question as to the propriety of admitting in evidence the club found by the grave with blood on it, the rope which was found around the neck of deceased, the sack which was over the head, and such other objects as were around the body. There are other bills of exception apparently having as little ground for objection in them as those which we have noted, to which we will not refer in detail.

Bill of exception No. 8 brings forward for review the following occurrence: After the jury had been impaneled and the case was on trial, a telegram came for one of the jurors announcing the death of his brother in Ohio. Apparently after discussing the matter with counsel for both sides, said juror was segregated from his fellows, and in the presence of counsel was acquainted with the contents of the telegram. The bill certifies that the juror was visibly affected, had tears in his eyes, was agitated and sobbed. He requested that he might discuss with his wife what he should do in the premises in regard to going to the funeral. His wife was sent for, and with the consent of all parties, and in the presence of the court and counsel, said juror talked to his wife, after which he approached the court and informed him he had concluded that it would be impossible for him to go to the funeral of his brother, and that he would prefer to remain on the jury and go on with the trial of the case. He stated to the court that it would make no difference in his attitude, and that he could try the case and give the defendant a fair and impartial trial, and be in nowise affected by the fact that his brother had died. Appellant in person and by his counsel made a motion asking the court to declare a mistrial, and to discharge the jury and continue the case. The court declined to do this. He further certifies that when the juror came up to him, after having conversed with his wife, to announce his purposes and desires, said juror appeared to have regained his normal composure, and that as far as the court could tell he appeared to be perfectly at himself and able to try the case. It might be further observed that in connection with the motion for new trial, the court had said juror to appear and give testimony, in which he swore that he had lost a large number of the members of his family, and that this brother who died lived in Ohio, and he had not seen him for a number of years, and that he had had very little personal association with him for approximately twenty years, and that during the trial and the hearing of testimony the juror entirely put away from his mind the fact of his brother's death, and that it did not influence him in any way or affect his verdict. We further note that no effort was made on the part of appellant, by the production of any other juror, or in any way, to show that the juror was affected in the jury room, or that anything occurred as a result of this matter which might have appeared even to reflect injury.

We see no reason for holding that this matter was not properly one for the primary decision of the juror, and next for the trial court, and there is nothing before us showing any abuse of discretion of the trial court in declining to declare a mistrial, and in directing that the case proceed. In Torres v. State, 91 Tex.Crim. Rep., 238 S.W. 928, we had a case where the trial court declared a mistrial in a case where a brother of a juror had died during the trial, which fact was reported to the court, together with the further fact that the presence of the juror was needed to make arrangements for the funeral, etc. Upon what was thought to be consent in that case, the jury were discharged and proper orders made reciting the facts. Upon another trial a plea of jeopardy was interposed. In disposing of the matter we said: "We are inclined to think that where the record shows an adjudication by the trial court of the fact of the death of a juror's brother during the trial, and of the further fact of the need for the presence of said juror at once to arrange for the funeral, and the discharge of the jury in such event, that we should not hold this any abuse of the necessary discretion confided in the trial court in such matters of practice. Death and illness nigh to death are the most disturbing factors to the human mind when they come to our loved ones, and care for the dead and dying is one of the strongest calls upon affection and humanity, and we do not feel any need to make elaborate argument to support our conclusion that this was a sufficient circumstance to justify the action of the trial court." A somewhat similar case was that of Woodward v. State, 42 Tex.Crim. Rep., in which we held the action of the trial court proper. We have here no similar set of facts or legal question. It must be manifest that our statute contains no such ground for disqualification of a juror as that he has lost a relative, no matter how close. It is also plain that in selecting jurors, those matters involving opinions, feeling and scruples of proposed jurors as described in article 616, C. C. P., are matters whose decision as to the fixedness of opinion, or the extent to which same might affect the juror's action, — are always first left to the decision of the talesman, — and if he feels that he can impartially try the case and render a fair verdict, and be unaffected by what he may have heard or read, his qualification is then for the trial court, and unless there be serious question raised and supported in the record of such import as to lead this court to conclude the rights of the accused have been harmfully affected, the action of the trial court in such regard would be upheld. That is exactly what we held in the cases above cited in which, upon what seemed good ground, the jury was discharged, and regarding which we held it was a proper exercise of the court's discretion.

We have gone carefully over the facts, and considered them in the light of the infliction of the extreme penalty. We have considered the exceptions to the court's charge, and have been unable to agree that any of them present any serious questions of injury. The case was necessarily one of circumstantial evidence, and the State has marshaled its circumstances and presented them so convincingly as to leave apparently no room for doubt in the minds of the jury of the guilt of the accused. We think no error was committed in the introduction of evidence, or in the matter of the charge.

The judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.