Howard v. State

Appellant stresses in his motion for rehearing claimed errors on the part of the trial court in not charging generally upon circumstantial evidence and in not charging upon that subject specifically as it related to the identification of Nixon's body. After having carefully examined the facts bearing upon the matter and also the authorities relied upon by appellant we find ourselves unable to adopt his viewpoint. The death of Nixon by the criminal agency of appellant is shown by the direct evidence of the accomplice Ham. He details the shooting at deceased by appellant and how appellant struck deceased two severe blows on the head with the shovel while he was pleading for his life, and how appellant dragged deceased's body to the prepared grave. Repeatedly in his evidence Ham refers to the "killing" of deceased, or says he was "killed." In some of its grewsome details the case of State v. Calder, 23 Montana 504, resembles the present one. It was there held that no charge upon circumstantial evidence was required. From the testimony of Ham it appears that after digging a grave appellant induced deceased to approach it, and after two shots had been fired by appellant deceased was seen on his hands and knees imploring appellant not to kill him; that appellant then struck deceased with a shovel and he fell on his face, and then witness saw appellant dragging the "body" of deceased to the grave. It might with plausibility be asserted that the "body" which Ham saw was the corpse of deceased. The body discovered and disinterred was identified as Nixon's, completely and fully. The jury could have reached no other conclusion. To show such identity the state resorted to proof of circumstances many of which were not discovered until many months after the killing. This does not in our opinion make the case one in which the state relied solely upon circumstantial evidence.

Sustaining the court's admission of evidence by Williams that he saw deceased in possession of a considerable sum of money just before he started on the fatal journey with appellant and Ham the case of Lovel v. State, 93 Tex.Crim. R.,248 S.W. 349, was cited in our original opinion. Among other objections it was urged that the testimony of Williams related to a "transaction occurring in the absence of defendant." (Bill No. 8.) The motion for rehearing on this point is predicated on the proposition that such evidence was inadmissible unless it was shown that appellant had knowledge that deceased was in possession of the money. It is nowhere certified in the bill that appellant did not have knowledge of such fact. That appellant was not present when Williams saw deceased with the money would not be conclusive that appellant was ignorant of the fact that deceased did have it. The parties had been traveling together for several days during which time deceased had bought gasoline and oil for the car. Circumstantially it was thus shown that if deceased had money on his person appellant had an opportunity of knowing it. It is appellant's claim that the Lovel case (supra) when read in connection with Maxey v. State, 104 Tex.Crim. R.,285 S.W. 617, and McCoy v. State, 106 Tex.Crim. R.,294 S.W. 573, supports his contention that it was inadmissible to receive evidence that deceased shortly before the killing had money in his possession unless appellant knew of such fact. If the cases mentioned have been construed as announcing such a general rule they are misunderstood. The language in McCoy's case which seems to have been so construed by appellant will be found really to have reference to proving a custom between deceased and another person of which custom accused was ignorant. If deceased had in his possession money or other property before the killing which was absent from his dead body it would tend to support the state's theory that the killing was done by some one for gain; if the property was found in accused's possession it would point to him as the murderer; likewise, if the state could also show that accused knew beforehand that deceased had the money or property it might suggest motive on his part for the killing. So far as we know it has always been permissible to prove the financial condition of deceased and accused when such testimony was relevant and tended to show motive for the homicide. Cordova v. State, 6 Tex. Cr. App. 207; Early v. State, 9 Tex. Cr. App. 476; Garza v. State, 39 Tex.Crim. R.; Johnson v. State, 48 Tex. Crim. 423; Branch's Ann. Tex. P. C., Sec. 1879; Underhill on Crim. Ev. 3d Ed. Sec. 503.

It is forcibly urged that we were in error in disposing of appellant's bill of exception No. 35 regarding the argument of the district attorney. When the matter complained of is not a direct reference to the failure of the defendant to testify the implication that it was such a reference must be necessary. We cannot regard the argument which is set out in the original opinion as a direct reference to the failure of defendant to testify and this court is always confronted with difficulty in determining if the implication is a "necessary one" because of the fact that it is difficult, if not impossible, to bring before us in a bill of exception the exact surroundings and "setting" at the time the argument is made. This necessarily must enter into the question and the trial court should be in a much better position than we are to determine the matter. The district attorney said: "The high points of the killing of Nixon are indelibly impressed upon that fellow and I do not believe he could keep from telling it;" — if when he reached this point in his argument it occurred to him that from the situation of the parties in the court room or from other circumstances in the case his language might possibly be construed as having reference to accused, he immediately disclaimed any such intention and made it clear that he was referring to a witness and not to accused by use of the further language "Not him (pointing at defendant) Ham couldn't keep from telling it." — for us to hold that such incident reflected an infringement of Art. 710 of the Code of Criminal Procedure would seem to be going too far. The incident is subject to such construction. Neither do we think that Smith v. State, 106 Tex.Crim. R., 294 S.W. 221 is in conflict with our announcement here. In that case the reference in so many words was to the defendant's failure to testify.

Appellant still insists that the entries on the Central Hotel register at Pecos were improperly admitted in evidence. Ham testified that he, appellant and Nixon stopped at this hotel at a time which corresponds with the date shown on the hotel register; that he saw appellant and Nixon write in the register; that later he was again at this same hotel with the sheriff. The sheriff says that the Central Hotel was not then being operated, but that he obtained at said place from the man in charge the hotel register in question upon which in handwriting shown to be appellant's were the names of Warner and Biggs, and immediately under these names appeared that of deceased. Under the circumstances we still fail to discover any error in admitting the evidence. We think the cases to which we are referred do not control. Patterson v. Gulf Colorado and Santa Fe Ry., 126 S.W. 336, relates to admitting in evidence books of the railway company without proof that they were correctly kept. Lancaster, et al. v. Rogers and Adams,235 S.W. 643, and Morris v. Davis, 3 S.W.2d 109, only hold that the notation on bills of lading regarding the condition of the shipments to which they related were inadmissible in the absence of proof as to who made the notations. In the present case it was shown circumstantially that appellant and deceased wrote the names on the register.

Appellant again urges that the trial court committed error in permitting the sheriff to testify that some two and a half years after deceased was killed the witness Ham pointed out certain places to the sheriff. The bill of exception (No. 10) fails to reveal that anything detrimental to appellant's case was found at any of those places save at the Central Hotel at Pecos where deceased's name and the assumed names in appellant's handwriting were discovered in the hotel register. Ham had testified that he went with the sheriff to the Central Hotel at Pecos and the sheriff was then permitted to testify what he found there. This transaction appears to be squarely within the principle announced in Marta v. State, 81 Tex. Crim. 135,193 S.W. 202; Huey v. State, 81 Tex.Crim. R.,197 S.W. 202; Willman v. State, 93 Tex.Crim. R., 242 S.W. 747. Frequently testimony can be connected up in no other way. Ham could properly testify about all the places at which he, appellant and deceased stopped on their journey, and could relate the relevant incidents in connection therewith; he could also properly testify that he took the officer to these stopping places and the officer then could give evidence of discoveries there made. The statements of Ham to the officers as to what occurred at these places would, of course, be hearsay and could not properly be received in evidence either from Ham or the officer.

It is appellant's contention that the state failed to place him at the scene of the homicide by any evidence save that of the accomplice Ham, and therefore that the court was required to give an instructed verdict of not guilty. Upon this point we are referred to Boone v. State, 90 Tex.Crim. R.;235 S.W. 580, Ross v. State, 104 Tex.Crim. R., 286 S.W. 221 and Noble v. State, 100 Tex.Crim. R., 273 S.W. 251. A review of these cases is not thought necessary. None of them is subject to the construction that the state is required to locate an accused at the place of the crime by other direct evidence than that of an accomplice. If such was the law the requirement as to the sufficiency of evidence to corroborate an accomplice would be meaningless. Regardless of any particular expression in the opinions referred to nothing was decided save that the evidence in those cases did not in the opinion of this court measure up to the requirements of the law. We entertain no doubt as to the evidence being sufficient in the present case, after a most careful and painstaking re-examination of the record.

On account of the severest penalty known to our law having been inflicted we have with much patience again reviewed the record and must adhere to the conclusion announced in our original opinion that no error is found which in our judgment demands a reversal.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.