Gibson v. State

KRUEGER, Judge.

The offense is murder. The punishment assessed is death.

The state’s evidence, briefly stated, shows that on the night of the 6th day of November, 1948, appellant entered the home of Juan Olague where the deceased, a boy about fifteen years of age, was asleep on a bed and stabbed him several times with a dagger, inflicting fatal wounds from the effects of which death resulted in a very short time. A little girl who had gone to the house to borrow some matches saw appellant in the house with the dagger in his hand and heard the boy say, “Please don’t hit me no more.” She ran to Fabian Gomez’s cafe and informed him of what she had observed. Gomez called some officers who were near his cafe where a dance was in progress. When the officers arrived at the home of Juan Olague, appellant was in the act of coming out; but when he noticed the officers, he ran back into the house. One of the officers followed him into the house and then appellant jumped through an open window pulling the screen from the window as he went out. Two of the officers who were on the outside grabbed appellant, took the dagger away from him and carried him to jail. An investigation made by one of the officers and Mr. Gomez disclosed the body of the deceased lying on the bed and covered completely with old quilts. The investigation also disclosed that the house had been ransacked. Appellant made a confession' in which he admitted that he entered the house by himself on the night in question; that he had consumed a considerable quantity of intoxicating liquor on the afternoon up to a short time before he entered the house; that he did not remember stabbing the boy, but that he must-have done so since no one else was in the house with him. At the time the officers apprehended him, he had the dagger in his hand and it had blood on it; his clothes also had blood on them. Thus it will be noted that the proof conclusively shows that he committed the offense. His only excuse for the brutal murder was that he was intoxicated.

The only complaints brought forward are embraced in his motion for a new trial wherein he, for the first time, complains of certain remarks made by the district attorney in his closing argument to the jury. No objection seems to have been urged to the argument complained of at the time it was made. The first time the court heard of the complaint was in appellant’s motion for a new trial. It is the settled law of this state that it is too late to complain of argument for the first time in a motion for a new trial. An objection should be addressed thereto at the time it is made. See Rucker v. State, 7 Tex. App. 549; Watson v. State, 28 Tex. App. 34 (12 S. W. 404); Harvey v. State, 35 Tex. Cr. R. 545 (34 S. W. 623); Boyce v. State, 62 Tex. Cr. R. 374 (137 S. W. 116); and many other cases might be cited.

His next complaint in the motion is misconduct on the part-of the jury, in this: that the jury in determining whether to. assess his punishment at death or imprisonment in the penitentiary for life, they took into consideration the possibility that, if he were given less than death, he might receive a pardon in future years and be released to again prey on society. The court heard the evidence of some of the jurors relative thereto. Appellant called six of the jurors to testify on his motion. Mr. H. O. Phillips, one of the jurors who sat in the case, testified, in substance, as follows: The jury sent a note to the district judge in which they asked that in case they assessed the defendant’s punishment at imprisonment for life could he be pardoned or would he have to serve his full time; the note was returned and destroyed; that he did not know why the note was sent to the judge. I expect we considered the possibility that he would receive a pardon, although I won’t say we did or didn’t.

Mr. Hughes, one of the jurors, testified, in substance, as follows: Our first vote, after our vote of guilty, was, the best I remember, seven for life and five for the death penalty. There was some discussion by the jurors as to whether the defendant would be given a pardon by the governor if he were given a life sentence; some of them just wondered if he wouldn’t — couldn’t be — pardoned, following this the note was sent to the judge. The judge replied that he could not answer that question. I think I said that I read in a newspaper where it had been done. I do not know of any statement made by other jurors.

Mr. Norris testified, in substance, as did Mr. Hughes but in addition thereto testified that the jurors talked awhile about giving defendant a life sentence and also discussed giving him the death penalty, but some one said if he was given life that he could be given a pardon and be out on the public again.

Jurors Potts and Pierce testified that after retiring and selecting a foreman they voted on his guilt and then they voted on the punishment to be assessed. On the first ballot is was seven for life and five for death. On the second, it was just the reverse, however, as time went on, they switched back and forth. Their recollection was that after the discussion of a possibility of a pardon they stood nine for the death penalty and three for life imprisonment. This is, in substance, the testimony developed on the hearing. The court overruled the motion and he excepted to the ruling of the court. The question of whether or not some governor may at some future time pardon appellant was a mere conjecture. It was purely speculative on the part of the jury. No one could know what some governor may or may not do. We think the case falls within the rule announced in the case of Henderson v. State, 132 Tex. Cr. R. 596 (106 S. W. 2d 291). See also Todd v. State, 93 Tex. Cr. R. 553 (248 S. W. 695); and Prater v. State, 131 Tex. Cr. R. 35 (95 S. W. 2d 971).

No reversible error appearing from the record, the judgment of the trial court is affirmed.

Opinion approved by the court.