Wilkerson v. State

Appellant was convicted of the murder of his wife, and his penalty assessed at death. The State was permitted to prove that immediately after killing his wife, and within forty steps of her dead body, the defendant shot and killed one Will Hamilton. A bill of exceptions was reserved to the admission of this testimony, but the grounds of objection are not stated, and the bill is therefore too defective to authorize its consideration by this court.

A bill of exceptions should set forth the objections interposed to the admission of evidence, and objections not affirmatively presented will be deemed to have been waived. Bryant v. The State, 18 Texas Ct. App. 107[18 Tex. Crim. 107]; Gilleland v. The State, 24 Texas Ct. App. 524[24 Tex. Crim. 524]; Walker v. The State, 9 Texas Ct. App. 200[9 Tex. Crim. 200]; King v. The State, 13 Texas Ct. App. 277[13 Tex. Crim. 277]; Davis v. The State, 14 Texas Ct. App. 645[14 Tex. Crim. 645].

But had the matter been properly presented, we do not believe any valid objection could have been urged to the competency of the evidence. It was clearly admissible as res gestæ, and was properly limited by the court in the charge given the jury.

The second bill of exceptions is defective in the same respect. It does not inform us what grounds of objection, if any, were ever urged to the admitted evidence. The bill recites, in substance, that Jeraleen Harrison was permitted to testify that appellant and herself went "off together some two weeks before the killing of Susan Wilkerson, and were traveling together * * * until arrested and brought back to Bell County." This bill of exceptions is too indefinite to be considered. Bills of exception should recite facts which would enable this court to understand and know all the facts necessary to be known to determine the correctness or error of the ruling of the court to which the objection is sought to be urged. Livar v. The State, 26 Texas Ct. App. 115[26 Tex. Crim. 115]; Jacobs v. The State, 28 Texas Ct. App. 79[28 Tex. Crim. 79]; Willson's Crim. Proc., secs. 2368, 2516.

Inference will not be indulged to supply omissions in a bill of exceptions. It should be sufficiently explicit in and of itself to point out the error complained of, without recourse to presumptions or inferences. Same authorities.

Presumptions are to be indulged favorably as to the correctness of the rulings of the court, and not adversely thereto. But if the bill had been properly presented, the evidence of this witness was clearly admissible as pertinent to the questions of malice and motive.

We have carefully considered the charge of the court and have failed to find any error in it. If in any respect erroneous, it is in appellant's favor. The testimony fully justifies the verdict. The evidence disclosed that appellant and deceased, as husband and wife, had not lived together for some time, on account of his forced incestuous intercourse with her child, his step-daughter. On the night of the homicide the daughter and mother were together at the house of a friend. The deceased was on the gallery, sitting in a rocking chair, when appellant approached and shot her to death with a shot gun, the shot taking effect principally in her head. He then ran to and seized his step-daughter and hurried off with her as rapidly as possible. She was screaming and resisting him all she could, and this impeded his progress to some extent. Several parties pursued, and as they approached him he fired upon and killed Hamilton, one of the pursuing party.

From the first shot to the latter homicide the extent of time was not exceeding two minutes, and the territory covered a distance of about forty steps. After shooting and killing Hamilton, defendant pursued and several times snapped his gun at another one of the pursuing party, who was in rapid flight trying to escape him.

We can not concur with counsel for appellant that the testimony is insufficient to support the conviction. We are of opinion it justifies that extreme punishment affixed by the law to the crime of murder and assessed by the jury. The evidence manifests a cold-blooded and heartless killing, and a murder committed upon express malice.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.