Elsworth v. State , 54 Tex. Crim. 38 ( 1908 )

Appellant was indicted for murder in Potter County and upon trial was convicted for murder in the first degree with life imprisonment assessed as his punishment. The case was appealed to this court and reversed. See Elsworth v. State, 52 Tex. Crim. 1; 104 S.W. Rep., 903. The venue of the case was changed to Donley County. There appellant was again tried and the same punishment assessed against him.

The first error complained of is to the action of the court in overruling the motion for continuance. The testimony of Mrs. Morris was sought to impeach the testimony of Mrs. M.L. Morris, who identified appellant as the party who was with the deceased at her hotel the night before the homicide. Application for continuance will not be granted for impeaching testimony. As to the witness Scroggins, his testimony was introduced during the trial of the case, apparently by agreement as shown in the statement of facts.

Appellant further complains of the action of the court in permitting the following testimony to be introduced: Sam West testified for the State that the defendant and one Burk came to W.E. Tandy's camp, where witness was working, after the homicide; while at the ranch the defendant told witness that he had been to Amarillo, and Burk said he and Elsworth worked right across the street from each other, and Burk said one night while he was talking that they had seen a poor fellow killed at Amarillo the other night; that he said they saw him taken and thrown into a wagon and taken out on the railroad and that they saw them take all his clothes off; that they both said a time or two that they spent all their money there in Amarillo having a good time. The State asked the witness the following question: "Had you heard at that time about a boy being found by the citizens there?" Appellant's counsel objected to the question as hearsay, immaterial and irrelevant. The court overruled the objection, and the witness said he had not. Further along the witness testified that the defendant and Burk said they were broke; that one had 10 cents and he sent to Ochiltree for some tobacco and that he never asked them any questions when they told about seeing the boy knocked in the head. The testimony was clearly admissible.

Appellant further complains that the witness, Charles Gechter, was permitted to testify that defendant and his companion, Burk, acted strange when he walked up to where they were; that "they acted kinder funny." This testimony was also admissible. See Powers v. State, 23 Texas Crim. App., 42; Miller v. State, 18 Texas Crim. App., 232. On the trial of the case the State introduced G.T. Cuban, Chief of Police of Wichita, Kansas, who testified. "I met defendant on the 8th of November, 1906. The first time I saw him was when he jumped off the train. I arrested him. I arrested him at the express office. When he got off the train I seen him jump off and recognized him by a picture I had. I heard him call for the valises. I had told the express man to ask them their names and as soon as they told their names — when he asked their names they hesitated." Appellant's counsel objected to this testimony on the ground that the defendant was practically under arrest. The objection was overruled, and the witness stated: "He hesitated and the expressman asked him what his name was. He said his name was Elsworth and I arrested him and told the officer to take charge of him." Appellant was not under arrest under the authorities of this court. Gay v. State, 40 Tex.Crim. Rep.; 49 S.W. Rep., 612. There is nothing here to show that appellant recognized it as a fact that he was under arrest, but as a matter of fact the statement shows that he was not at the time he made the statement. It is not the intention of the sheriff that controls the admission of testimony, but it is the fact that appellant is laboring under mental constraint and feels that he is under arrest that excludes the testimony.

Appellant further contends that the court erred in charging the jury on the question of murder committed in the attempted perpetration of robbery on the ground that there was no testimony authorizing this charge. The evidence shows that deceased, a day or two before the murder, was seen in the town of Hereford in company with appellant; that he (deceased) had in his possession a roll of money that he had drawn out of the bank that day; that deceased was seen paying bills for appellant and made quite a show of his money. Deceased had his suit case and he and appellant came to the town of Amarillo the night before the homicide, put up at a hotel, deceased paid 75 cents for a bed for himself, appellant and a third party for the remainder of the night with instructions to the landlady to wake them up at 4:30. This she did and the parties departed. The next day deceased was found stripped of all his clothing with several deadly gashes upon his head and in an unconscious condition lying by the railroad track in the town of Amarillo. The injuries appeared to have been made with a hatchet or some sharp instrument. Deceased was picked up, carried to a sanitarium, never recovered consciousness and died some forty-eight hours thereafter. A coat, pants, drawers, socks, shoes and hat were found in a tank car, and when the water was drawn off and the clothing placed on deceased's body they fit him; no money was found in his pockets; deceased's grip was found in possession of defendant and thoroughly identified by a rivet which deceased had fastened a handle of the grip with, sometime prior to the murder. The evidence shows that deceased had $75 or $100 at the time of the homicide. Appellant stated when arrested that if released he could show them the party that killed deceased, and various other circumstances too numerous to mention clearly indicate that the killing was done by appellant, and that the sole and exclusive purpose therefor was to obtain deceased's money. This being true it follows that the court properly charged on murder committed in the attempted perpetration of robbery and there being nothing to suggest murder in the second degree, it certainly was not improper for the court not to so charge. Benevides v. State, 14 Texas Crim. App., 378.

The evidence in this case clearly establishes murder of the first degree, as suggested, in the perpetration of robbery, and the court charged all the law applicable to the facts. We find no error in the record and the judgment is in all things affirmed.

Affirmed.

ON REHEARING. June 13, 1908.