Booker v. State , 124 Tex. Crim. 562 ( 1933 )

The offense charged is the murder of Andy Smith by blows inflicted with a hatchet. Smith was found in his store wounded by blows upon his head and died in a very short time after his discovery. That the wounds brought about his death was shown by medical testimony. It was shown by associates of the appellant that prior to the homicide he had stated that he intended to kill Smith in order to get money to purchase some wearing apparel.

The appellant's confession taken after his arrest in compliance with the terms of the statute upon the subject, article 727, C. C. P., 1925, fully supports the theory of the state that the deceased was killed by the appellant in the manner stated for the purpose of robbery.

In bill of exception No. 1, it appears that a motion to quash the special venire was made. The grounds of the objection were investigated by the court and the evidence which is found in the record is quite sufficient to support the finding of the court that the motion was without merit.

The attack upon the indictment that it was duplicitous is likewise untenable. In several counts it charges the killing of the deceased with a hatchet or hand-axe. The first count alone was submitted to the jury, and the proof, both direct and circumstantial, supports the averment.

Two written confessions were made. As stated above, they were both in accord with the statute on confession. Their introduction in evidence was opposed as shown by bills of exception Nos. 3 and 4. It is claimed that the confessions were not voluntarily made but were obtained under duress. However, the confessions on their face appear regular, and the testimony adduced upon the trial bearing on the circumstances under which the confessions were made is quite adequate to sustain the court's action in overruling the objections thereto and in rebutting the criticisms addressed to the written confessions. It is thought that the admissibility of the evidence mentioned is not, under the facts, open to serious question. See Branch's Ann. Tex. P. C., p. 1179, sec. 2099; article 1261, P. C., 1925.

The reception in evidence of the weapon with which the homicide is alleged to have been committed is authorized by statute and has often been given judicial sanction. See Mason v. State, 94 Tex.Crim. Rep.; Scroggins v. State,119 Tex. Crim. 32; Hawkins v. State, 115 Tex. Crim. 163.

Nothing in the motion for rehearing presents for review any new matter; nor does it refer to any authorities.

By proper order of the court the venue of the case was changed from Milam county to Travis county. A plea of guilty was entered and accepted by the court upon the trial.

Nothing in the record indicates that there were any unusual circumstances attending the trial in Travis county. The proceedings appear to have been regular. The appellant was protected in all his legal rights under the circumstances, and the verdict of the jury is manifestly binding upon this court.

The motion for rehearing is overruled.

Overruled.