Ebers v. State , 129 Tex. Crim. 287 ( 1935 )

The offense is murder; the punishment, confinement in the penitentiary for 99 years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed P. G. "Percy" Graves by striking him with a blackjack.

Deceased was a welder in the employ of The Texas Company at Electra. On occasions he drank intoxicating liquor to excess. About 4 a. m., on the 24th day of November, 1934, a deputy sheriff found deceased asleep in his (deceased's) automobile on a street in Wichita Falls. The officer aroused him and saw that he was intoxicated. Carrying him to jail, he placed him in a section known as tank No. 1, which consisted of one large enclosure, within which were several cells where the prisoners were segregated at night. There were other bunks within the tank outside of the smaller cells. At that time appellant was confined in the tank mentioned with a number of other prisoners. About twenty minutes after deceased had been placed in the tank prisoners called the jailer and advised him that deceased was dead. An autopsy disclosed that he had died from cerebral hemorrhage brought about by external violence. There was a wound over the left eye, at which place two bones were abnormally separated. There was another wound on the back of the head. We quote from the testimony of one of the examining physicians, as follows: "After we completed the autopsy we believed Mr. Graves (deceased) died as a result of some external injury causing a broken blood vessel, most probably in the base of his brain, and causing the blood to cover his brain to such extent as to get around the vital centers in the base of his brain, which have to do with the heart beat, and that the pressing and cutting-off of the blood supply which furnishes food and nourishment to the blood centers caused the man's death."

The inmates of the tank in which appellant and deceased were incarcerated were called to testify. The version of those introduced by the State was, in substance, as follows: When deceased entered the tank he sat down on a bunk known as the "cook table" which the prisoners used to keep a small cooking element and utensils on. At this juncture, appellant said to deceased: "Get up off of that G-d-d table." Deceased replied that he was not bothering anything. Appellant then approached him and struck him on the head with a blackjack, and, pushing him around, hit him on the back of the head with the same weapon. Some of the witnesses did not see the blackjack. Others thought appellant used his fist. Deceased fell to the concrete floor. Appellant dragged him to his (appellant's) bunk and took his clothes off. He and one Shaw then carried deceased to a shower bath, and, dropping him on the concrete floor, turned the water on him. Deceased was groaning. Appellant said: "I ought to kill the s-of-a-b-." Some of the witnesses told appellant deceased was dead. Appellant answered, in effect, that he would bring him to. He turned the water on deceased and let it run two or three minutes. He finally dragged the body back into the tank and left it on the concrete floor. The prisoners called the officers.

One of the witnesses testified that appellant asked him to say that he (appellant) was asleep when the matter occurred and had nothing to do with it. Witnesses testified to having seen a blackjack in appellant's possession shortly prior to the homicide. One witness said: "Yes, I saw the defendant with the blackjack; he had one. I venture to say it was about this long, about 12 or 14 inches long, and has a handle about 10 or 11 inches long on it and a round knob on the end of it. I don't know exactly what it was made of, but I do know what some of them were made out of. It would weigh almost a pound I believe. I know what was in there. In the knob of the blackjack was a piece of iron. It looked like the bolt or tap that is screwed on the end of those bunks. There is a piece that runs out there about that way that had been broken off and torn up. It was a hand-made blackjack."

Appellant was approximately six feet and three inches tall and weighed about two hundred twenty pounds. Deceased was five feet and ten inches tall and weighed one hundred fifty pounds. Deceased was in a helpless condition. It was uncontroverted that he made no attack on appellant. We quote from the testimony of a physician as follows: "The blow which produced that fracture I saw on his left eye could have caused the hemorrhage of the brain which I found. It depends on how hard the blow was on the back of his head where I found that bruised place as to whether that blow could have been sufficient to have caused a hemorrhage of the brain. I found at the base of the brain some fluid. Most of it was clotted blood. If I saw Percy Graves (deceased) a man weighing about 150 pounds, 5 feet 8 or 9 inches tall, sitting on a cot or bunk in the jail, and a man the size of the defendant, 6 feet 3 or 4 inches tall, weighing about 220 pounds, about 32 years of age, took a blackjack made of metal, strips of metal, weighing about a pound, with a handle 4, 5, 6 or 10 inches long, and were to strike a blow over the head of this man Graves with it once, up the side of the head by the eye and he staggered away and he would catch him and knock him in the back of the head with it, and knock him limp, I think that would be sufficient to cause the hemorrhage that resulted in his death."

Appellant did not testify.

Appellant earnestly insists that the evidence is not sufficient to show an intent to kill. In Walker v. State,94 Tex. Crim. 414, 251 S.W. 235, which was decided prior to the repeal of the statute defining manslaughter, Judge Lattimore, speaking for the court, used language as follows: "If one, not in self-defense, and not under circumstances reducing to manslaughter, assault another, and death ensue, and it be contended that the weapon used was not deadly, and that the intent to kill was lacking, these still are fact issues for the jury under appropriate instructions."

In McNeill v. State, 80 S.W.2d 995, the proof showed that the deceased, who was the wife of McNeill, weighed about 130 pounds. It was uncontroverted that McNeill attacked her with a hickory stick 4 1/2 feet long and an inch in diameter, weighing 3 or 4 pounds. The deceased begged him to stop beating her, saying that he was killing her. Finally she ran from the house followed by McNeill. He did not hit her any more after they left the house. The proof on the part of the State was to the effect that the beating ruptured one of the lungs, causing pneumonia, which resulted in death. On prior occasions McNeill had assaulted the deceased and on one occasion had threatened to shoot her. The court instructed the jury to acquit of murder if they entertained a reasonable doubt as to whether McNeill intended to kill the deceased. Moreover, an adequate and proper charge on the law of aggravated assault was submitted. We upheld the verdict of the jury finding the appellant guilty of murder with malice and assessing his punishment at confinement in the penitentiary for forty years.

In the present case the court instructed the jury upon murder with malice and without malice. He required the jury to find an intent to kill before a conviction for murder could be had. He gave a charge covering the law of negligent homicide and submitted an instruction covering the law of aggravated assault. Under the circumstances, we think the quotation from Walker's Case hereinabove set forth is applicable. In short, the question as to whether there was an intent to kill was for the jury.

Bills of exception 4 to 10, both inclusive, relate to proof on the part of the State that appellant was in possession of a blackjack shortly before the homicide. It was charged in the count of the indictment under which appellant was convicted that appellant killed deceased by striking him with a blackjack. Appellant sought to show by some of the inmates of the jail that he only used his fist in striking deceased. Two witnesses for the State testified that the assault was made with a blackjack. Under the circumstances, testimony that appellant was in possession of a blackjack from one to four days prior to the homicide was relevant and material. Relevancy is defined in sec. 97, Branch's Annotated Penal Code, as follows: "Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable. McGuire v. State, 10 Texas App., 127. Lane v. State,164 S.W. 380."

Objection was made to the testimony of W. E. Claybrook because it affirmatively appeared that he had been adjudged insane on the 23rd of October, 1934, and that said judgment had not been vacated. The witness testified that he was 39 years of age; that he had been adjudged insane in the district court of Wilbarger County in October, 1934; that he understood the nature of an oath and that a penalty would be inflicted if he testified falsely; that he had had spinal trouble and had been addicted to the use of narcotics; that since his confinement in jail he had been denied such use and his mind had become clear; that he believed he was capable of recalling past events; that as far as he knew, his mind was clear at the time he was called to testify. An alienist testified that he had examined the witness on the 20th of December, 1934, and again on the 5th of January, 1935; that he took the history of his mental condition; that on neither occasion did the witness appear to be suffering from any delusions or false beliefs; that in his opinion the witness was sane on the two occasions he had examined him. It appears that the homicide occurred November 24, 1934, approximately a month after the witness had been adjudged to be of unsound mind. The testimony of the witness, as it appears in the record, is devoid of anything reflecting an unbalanced mind.

Appellant refers to Art. 708, C. C. P., which declares incompetent a witness who is in an insane condition at the time he is offered, or who was in that condition when the offense concerning which he is called to testify occurred. That there exists an unvacated judgment, adjudging the offered witness a lunatic, will not suffice to reject his testimony. Girvin v. State, 15 S.W.2d 643. In Downing v. State, 20 S.W.2d 202, this court used language as follows: "The admissibility of the testimony of one who has been adjudged a lunatic is in a sense a judicial question to be determined by the judge presiding at the trial upon evidence or facts before him. In this connection, it is to be noted the credibility of such testimony is a question for the jury, and for their information it would be competent that all the facts bearing on the subject be heard upon the trial."

In the present case, following the procedure laid down in Batterton v. State, 107 S.W. 826, the court instructed the jury at appellant's request to disregard the testimony of the witness if they believed he was insane. In this connection, we disclaim any intention of holding that such an instruction is required in any case. Under the circumstances reflected by the record, we are of opinion that the trial judge was warranted in concluding that the witness was competent. See Nations v. State, 237 S.W. 570.

Bill of exception No. 11 relates to appellant's objection to testimony on the part of the State that appellant was seen in possession of a blackjack on the morning of the homicide and that he appeared to be destroying it. We think this testimony was admissible for the reasons stated in our discussion of bills of exception 4 to 10, inclusive.

Bills of exception 1 and 2 relate to argument on the part of counsel for the State. It is shown in bill No. 1 that counsel made the following statement in argument: "The defendant is a man who would kill just to see 'em kick." In bill No. 2 it is shown that counsel in argument said: "The defendant is like the two Jewish boys who killed little Bobbie Franks." In each instance the court sustained appellant's objection and instructed the jury to disregard the remarks of counsel. In view of the action of the court in withdrawing said remarks, the opinion is expressed that the bills fail to reflect reversible error.

A careful examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.

It is recited in the sentence that appellant is condemned to confinement in the penitentiary for a term of ninety-nine years. Giving effect to the Indeterminate Sentence Law, the sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than ninety-nine years.

As reformed, the judgment is affirmed.

Reformed and 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.

ON MOTION FOR REHEARING