Washington v. State , 113 Tex. Crim. 291 ( 1929 )

Offense, murder; penalty, three years in the penitentiary.

Appellant killed Johnnie Smith. There were present at the time the father and mother of appellant, as well also as his sister, Lena May, and brother, A. B. Apparently appellant's brother, A. B., and one Willie Jefferson had theretofore had some difficulty, which is referred to in the statement of State witness Chappel, and which we now quote:

"Mr. Washington (the defendant's father) said he was going to tell some of Willie's people to tell him to leave before daylight, and so Robert Washington said that Johnnie (the deceased) was Willie's pigeon, and so Mr. Washington (defendant's father) said he was going to tell Johnnie to tell Willie to leave before day; so he told Johnnie to tell Willie to leave there before day, and Johnnie told him, 'I don't have nothing to do with that, my mama told me not to have anything to do with it;' and Robert called Johnnie a liar, and Johnnie called him another liar, and Robert hit Johnnie with his fist, and then Lena May hit Johnnie with a piece of iron along here (indicating) and A. B. throwed a rock at Johnnie, and Johnnie grabbed the piece of iron that Lena May hit him with and hit Robert Washington along here, so Robert raised up then and shot him."

Many bills of exception appear in the record but they fall generally into about three groups which we dispose of without discussing the bills seriatim.

Objections were made to the acts and declarations of members of appellant's family present at the difficulty, particularly the one quoted above, it being contended that it related to acts between other and different parties without showing any connection of said parties with the offense charged. The transaction for which appellant was on trial apparently began with the statement of his father quoted above and ended, without any break in the sequence of events, in the killing. These several statements and acts were part of the res gestae. Moreover, they appear to have been acts and declarations of participants in the difficulty with appellant and in his presence and were, we think, clearly admissible. Underhill's Criminal Evidence (3rd Ed.), Paragraph 168. Such have been held admissible even where they involve proof of a distinct crime if they are so blended and connected with one another and with the crime charged as to form an indivisible criminal transaction. Underhill's Criminal Evidence (3rd Ed.), Paragraphs 152 and 160; Robbins v. State, 73 Tex.Crim. Rep.; Branch's P. C., Sec. 166.

Many bills of exception were taken to the asking of alleged leading questions. It has been many times held that same do not present reversible error in the absence of a showing of prejudice. Assuming that all the questions quoted were leading, they were not of a prejudicial character and no error is shown by any of these bills. West v. State, 2 Tex.Crim. App. 474; Hill v. State, 173 S.W. 1024; Branch's P. C., P. 90 and Sec. 159.

Bills of exception were taken to the admission of the arresting officer's testimony that he placed appellant under arrest about a mile and a half from the scene of the killing something like an hour thereafter. Appellant strenuously insists that this was prejudicial and cites the case of Bennett v. State, 48 S.W. 67. In the instant case the killing of deceased by appellant was not denied. The same appears to have been admitted, appellant claiming that it occurred in self-defense. Obviously, the rule announced in the Bennett case has no application here as the testimony of the arresting officer in that case amounted to the expression of an opinion that accused was guilty, it being one of circumstantial evidence and the identity of the slayer being a matter of controversy. The evidence was admissible as tending to show flight. Underhill's Criminal Evidence, Paragraph 203. Moreover, if inadmissible, the circumstances detailed by the officer were not of a prejudicial character and would not be such as would justify a reversal.

The facts shown in the record make a close case of self-defense. The jury, however, has resolved this issue against appellant and we are not at liberty to disturb such verdict, there being evidence to support it.

Finding no error in the record, 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.

ON MOTION FOR REHEARING.