Easterwood v. State

CHRISTIAN, Judge.

— The offense is murder; the punishment, confinement in the penitentiary for 15 years.

The opinion on a former appeal is reported in 77 S. W. (2d) 232.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Joe Edmondson by shooting him with a pistol.

The testimony is substantially the same as that adduced on the former trial. However, on the first trial appellant testified; whereas, he failed to take the stand on the present trial.

It was averred in appellant’s application for a change of venue that there existed in Ellis County so great a prejudice against him that he could not obtain a fair and impartial trial. Upon a hearing of the application appellant introduced witnesses who testified that in their opinion appellant could not obtain a fair and impartial trial in Ellis County. . Witnesses. for the State entertained a contrary opinion. According to their testimony, the case had not been generally discussed in the county and there was no prejudice against appellant. In short, conflicting theories as to prejudice arose from the evidence. Under the circumstances, the trial court had the discretion of adopting either theory; it being his duty to weigh the evidence. McNeely v. State, 283 S. W., 522.

It is shown in bills of exception No. 3 and 4 that the trial court had required the district attorney to furnish appellant the names of the witnesses the State relied upon for a conviction. The name of Roy Vinson, who testified for the State, was not placed on the list. Over appellant’s objection the witness was permitted to testify. It is recited in bill of exception 4 that apellant asked the court to grant a continuance to enable him to secure testimony to rebut the testimony of the witness Vinson, who testified as an expert relative to the “various bullet holes.” It is not shown that appellant made a written application for a continuance. The bills of exception fail to show the materiality of the testimony of the witness. Under the circumstances, reversible error is not reflected. See Pruett v. State, 24 S. W. (2d) 41.

It is shown in bill of exception No. 8 that the wife of the deceased was permitted to testify that appellant and deceased had a difficulty in her home several months prior to the homicide; that appellant was cursing in her presence; that deceased ordered appellant out of the house. Appellant’s objection to this testimony was properly overruled. We quote from Branch’s Annotated Penal Code, sec. 1881, as follows: “Antecedent menaces, prior assaults, former grudges, and former quarrels between the parties may be proven to show the state of mind and malice of the accused at the time of the alleged offense and to establish a motive for its commission.” In support of the text many authorities are cited, among them being Hill v. State, 161 S. W., 118.

Appellant excepted to the charge of the court on the ground that it failed to submit an instruction covering the law of circumstantial evidence. We think the exception was not well taken. When an officer reached the scene of the homicide appellant was present. He said to the officer: “They ganged me.” Again, he said: “I got one of them and the others run off.” The officer then threw his flashlight on deceased and asked appellant, “Who is it, Bill?” Appellant replied: “I don’t know.” A pistol, which was identified as belonging to appellant, was near the body of deceased. It had blood and hair on it. Appellant had blood on his face and hands. The head and face of deceased had been beaten into a pulp.

In the charge on self-defense the court gave appellant the right to defend ,against an attack by deceased, acting either alone or in connection with some other person or persons. Appellant contends that the court was not warranted in charging on a joint attack. According to the testimony of an officer, appéllant stated to him at the scene of the homicide that he had been “ganged”; that he got one of the parties; that the others ran away. In short, according to appellant’s version, he hád been attacked by several. Thus, it appears that the court’s charge was based on the evidence; and we are unable to perceive in what respect said charge was an improper limitation of appellant’s right to defend himself.

We find nothing in the evidence raising the issue of the defense by appellant of his home.

It is shown in bill of exception 14 that, in argument to the jury, special prosecutor used language as follows: “Now, gentlemen, they talked to you about putting yourself in the defendant’s position viewed from the standpoint of the defendant. All right, listen — do you know what the standpoint of the defendant is? No. The standpoint of the defendant is what the testimony and circumstances show as evidence introduced from this witness stand.” Appellant objected on the ground that thé argument constituted a reference to his failure to testify. The bill of exception is insufficient in failing to certify that appellant did not testify.

A careful examination of the record leads us to the conclusion that reversible error is not presented.

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.