Hague v. State

DICE, Judge.

The conviction is for murder. The punishment, 37 years in the penitentiary.

The state’s testimony shows that on the day of the homicide, the deceased, Ernest Charles Allbrite, and his wife went to the home of appellant and his wife where drinks were mixed and consumed by them and another couple visiting in the home. While they were drinking and talking, appellant had a gun in his hand and, after something was said about leaving, appellant remarked that he would shoot anyone who didn’t want to go. Whereupon they all left in an automobile and drove to the home of Charles Tibbs. Upon entering the house appellant appeared to be mad and, while armed with the gun, threatened to kill Tibbs. After more drinks were mixed, and appellant, with the gun in his hand, had grabbed and choked the deceased’s wife, a scuffle ensued between the appellant and the deceased in the living room and between their wives in the dining room. During the scuffle two shots were fired after which the deceased was observed lying on the floor and appellant, with the gun in his hand, grabbed his wife and said, “Let’s get out of here” and the two left ofit the back door.

The state’s attorney further shows that the appellant and his wife were apprehended approximately two and one half blocks from the scene of the killing by Officer Burris who had heard a radio report of the shooting and had observed the appellant with a gun in his hand and his wife walking fast on the street; that just before stopping them and after the officer had said to them, “Wait a minute,” the appellant put the gun behind him and his wife took it from him and it was then taken from her by the officer and upon being asked by Officer Burris what happened, appellant said, “I tried to kill all of them s.o.b’s” and appellant’s wife, when asked by the officer what had happened to her, said, “I don’t know, unless one of the bullets that Bill fired hit me.” (Bill, identified in the record as her husband, the appellant.)

It is further shown that the gun taken from the appellant’s wife and identified as the gun possessed by the appellant was a .32 caliber revolver which contained five bullets, two of which had been fired and three misfired; that the body of the deceased contained two bullet wounds and that the cause of death was the entry of a bullet into the heart and lungs of the deceased.

Appellant did not testify but offered his wife as a witness who testified that in the scuffle between the parties it was she and not the appellant who shot and killed the deceased.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of circumstantial evidence. We find no objection to the court’s charge.

Appellant insists that in view of his wife’s judicial confession that she shot the deceased, the evidence is insufficient to support the conviction because it does not exclude the outstanding hypothesis that she fired the fatal shot.

Under the well settled rule that testimony of members of the • accused’s family is not conclusive upon the jury, they were not bound to accept her testimony. Hawkins v. State, 99 Texas Cr. Rep. 569, 270 S.W. 1025; Zulkoski v. State, 102 Texas Cr. Rep. 501, 278 S.W. 441 and Lee v. State, 117 Texas Cr. Rep. 231, 34 S.W. 2d 890. The state’s testimony shows that immediately before his scuffle with the deceased, the appellant had a gun in his hand; that immediately after the deceased was shot in the scuffle, appellant still had possession of the gun, fled from the scene and made a statement, along with his wife, to the arresting officer, indicating that he had fired the shots. Such testimony, together with the other facts and circumstances, was sufficient to sustain the jury’s verdict finding him guilty and to exclude any other outstanding hypothesis except that of his guilt.

Appellant insists that the court erred in overruling his motion to instruct the jury to disregard that portion of the testimony of Officer Burris relative to what was said by appellant after his arrest which motion the record reflects was overruled by the court on the ground that the testimony was admitted without objection and also that it was part of the res gestae. The record shows that appellant’s statement to the officer was made within a very short time after the shooting upon his apprehension in flight while carrying the murder weapon and within two and one half blocks from the scene. Under such facts, testimony as to appellant’s statement was admissible as a part of the res gestae. Petitte v. State, 113 Texas Cr. Rep. 347, 21 S.W. 2d 522; Franks v. State, 125 Texas Cr. Rep. 245, 68 S.W. 2d 207 and Phillips v. State, 137 Texas Cr. Rep. 206, 128 S.W. 2d 393. In Trollinger v. State, 153 Texas Cr. Rep. 364, 219 S.W. 2d 1018, relied upon by appellant, the distance from the scene of the shooting to where appellant made the statement as well as the time which had elapsed was not shown.

In his brief and in oral argument appellant insists that fundamental error was committed by the prosecuting attorney in his cross examination of appellant’s witness Wilks relative to the truthfulness of certain matters alleged in appellant’s second motion for continuance. Appellant insists that such conduct was erroneous and prejudicial to him in that it was an effort on the part of the prosecutor to place before the jury the appellant’s reputation for truth and veracity when it had not been placed in issue and further that such conduct was an indirect reference to his failure to testify. The record shows that no objection was made by appellant to such cross examination of the witness. We find no merit in appellant’s contention that fundamental error is shown and in the absence of an objection to the matter of which complaint is made, nothing is presented for review. Young v. State, 163 Texas Cr. Rep. 30, 288 S.W. 2d 116.

Appellant’s remaining contentions have been considered and do not reflect error.

The judgment is affirmed.

Opinion approved by the Court.