DocketNumber: No. 16966
Citation Numbers: 127 Tex. Crim. 390, 76 S.W.2d 768
Judges: Krueger, Lattimore
Filed Date: 10/24/1934
Status: Precedential
Modified Date: 1/13/2023
The appellant was tried and convicted of the offense of murder, and his punishment assessed at confinement in the State penitentiary for a term of 15 years.
The testimony adduced upon the trial, briefly stated, is as follows: The appellant and deceased at the time of the difficulty had been married about two years. It appears from the record that they did not get along very well; that he had whipped her on one or two occasions and had instituted suit for a divorce which was pending at the time of her death. On Saturday evening, October 21, 1933, the appellant and deceased went to town in his automobile for the purpose of purchasing some
By bill of exception No. 1 the appellant complains of the action of the trial court in permitting Mrs. Perkins to testify that she heard the appellant striking and choking the deceased because the same was but an opinion and conclusion of the witness. The testimony, however, shows that the witness was familiar with the deceased’s voice; that she heard the deceased say, “He is killing me, he is choking me,” and she heard him striking the deceased; that the witness was familiar with deceased’s voice and recognized it; that she heard deceased say, “he is killing me, .he is choking me” is not an opinion or conclusion of the witness, and that she heard the blows when he was striking her was not a conclusion of the witness but the statement of a fact.
By bill of exception No. 2 the appellant complains of the following argument employed by the district attorney: “I know what could have produced the wound or alleged fracture in the skull of the deceased. A blackjack could have produced it,” to which appellant objected because there was no evidence that the fractured skull was caused by a blackjack. The indictment charged that “T. C. McLaughlin did unlawfully, voluntarily, and with malice aforethought kill Ida McLaughlin in some manner and by some means, instruments, and weapons to the grand jurors unknown.” There was no direct proof as to what means, if any, the appellant employed in inflicting the injury resulting in her death. There was testimony given by several witnesses that the skin was not broken at the place of the fracture. It is our opinion that under the allegations in the indictment and the testimony showing the condition of deceased’s head that any inference which would be a reasonable and plausible deduction from the facts and circumstances would not be improper, but the bill of exception also shows that the court at the request
By bill of exception. No. 3 the appellant complains of the action of the trial court in permitting the undertaker to testify that he found deceased’s skull fractured and in his opinion the injury was sufficient to cause death, to which appellant objected on the ground that the undertaker was not qualified to express an opinion as to what caused the death of deceased, that he was not a physician or surgeon, etc. The undertaker had testified that he was a qualified, licensed, and experienced embalmer; that he had been engaged in the business several years. We think that human intelligence coupled with the human experience of an embalmer would be a sufficient qualification to authorize an expression of an opinion as to the cause of death in such instances, and in support of the views here expressed we refer to the case of Smith v. State, 104 Texas Crim. Rep., 567, and the case of Espinoza v. State, 73 Texas Crim. Rep., 237.
Bill of exception No. 4 complains of similar matters as bill of exception No. 1 and is overruled for the same reasons there stated.
By bill of exception No. 5 the appellant complains of the action of the trial court in permitting the State to prove by Mary Orr that during 1932 the deceased had a broken arm; that appellant came home drunk one day and offered a drink to deceased, which she refused; that he, appellant, pulled the deceased’s hair, kicked her, slapped her, and tried to break her arm again, to which testimony he objected because it was too remote; that it related to separate and distinct offenses and did not involve moral turpitude. It has been consistently held by this court that prior assaults, former grudges, and former quarrels between the parties may be proven to show ill will and malice of the accused at the time of the alleged offense and to establish a motive. See Sullivan v. State, 31 Texas Crim. Rep., 486, 20 S. W., 927; Hill v. State, 168 S. W., 864; Branch’s Ann. P. C., sec. 1881.
By bill of exception No. 6 the appellant complains of the action of the trial court in permitting L. B. Maddox, a policeman, to testify that he went to appellant’s apartment about 9 A. M. on the day of the alleged homicide; that he found the bed disarranged, that he found two trunks and two rocking chairs, a sewing machine, and a table; that the bed sheets had some blood on them; that he found in the tray of a trunk the stock of a 12 gauge shotgun and the barrel of said gun on the bottom
By bill of exception No. 7 the appellant complains of the action of the trial court in permitting the State to display a shotgun in the courtroom when it had not been introduced as evidence. The record discloses that R. G. Phelps, a son of deceased, testified that he had left the gun with the appellant at the appellant’s apartment; that the gun was found in the apartment a few hours after the homicide. The indictment charged the appellant killed deceased in some manner and by the use of some instrument or weapon to the grand jury unknown. The gun was identified as the gun which the witness had previously left with the appellant. We think that under the allegations in the indictment and under the testimony of the witness Phelps there was no error on the part of the court in permitting the gun to remain in the courtroom within view of the jury. It is our opinion that this testimony was clearly admissible. We therefore overrule the appellant’s contention.
Bill of exception No. 8 appears to us to be without merit and is overruled. Bills of exception 9 and 10 relate to similar matters as complained of in bill of exception No. 7 and are overruled for the reasons there stated. Bill of exception No. 11 appears to us to be without merit and is overruled. The testimony complained of in bill of exception No. 12 was admissible on the question of ill will, malice, and motive. The bill of exception is overruled.
The appellant urges some 25 or 30 exceptions to the court’s charge. The court in his charge instructed the jury on murder
Finding no reversible error in the record, the judgment of the trial court is in all things 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.