
    BALLEW v. STATE.
    (No. 8243.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1924.
    Rehearing Denied April 30, 1924.)
    1. Criminal law <®=»956(I3) — Court in passing on motion for new trial may rely on oral testimony where affidavits are controverted.
    Under Code Cr. Proc. 1911, art. 841, the court, in ruling on motion for new trial on ground of misconduct of jury, may rely on oral testimony where the affidavits attached to the motion were controverted.
    2. Criminal law &wkey;>956( 12) — Defendant has burden of proving misconduct of jury where motion for new trial is controverted.
    On defendant’s motion for new trial on ground of misconduct of jury, controverted by the state, the burden of proof is on the defendant.
    3. Criminal law <&wkey;1158(3) — -Court’s finding, on conflicting evidence on motion for new trial binding on appeal.
    Where the evidence, on defendant’s motion for a new trial on the ground of misconduct of jury, was conflicting, the trial court’s finding, supported by evidence, is binding on appeal.
    4. Criminal law <&wkey;>l 174(2) — Juror’s reference to defendant’s failure to testify held harmless.
    Misconduct of juror in mentioning defendant’s failure to testify after jury had determined that defendant was guilty of murder, and that his punishment should be either death or imprisonment for 99 years, held harmless on appeal from judgment imposing 99-year sentence.
    ■5. Witnesses &wkey;>344(0 — Cross-examination of witness as to acts of misconduct not culminating in prosecution held improper.
    Testimony on cross-examination of a witness as to her attempts to shoot and poison certain persons,' not culminating in prosecution, was properly excluded.
    6. Criminal law <&wkey;404(3)— Rules of evidence not violated by permitting gun used in homicide to remain in courtroom until removed on defendant's request.
    In murder prosecution, rules of evidence held not violated by the fact that the gun, claimed to have been used in the homicide, after being introduced in evidence, remained in the courtroom until removed on defendant’s request.
    7. Homicide <&wkey;> 169(1) — Letter written to deceased at defendant’s dictation held admissible.
    In murder prosecution, in which defendant’s wife testified that she had written an anonymous letter to deceased at defendant’s dictation, and that the defendant hail mailed the letter, the letter, identified by the wife, was admissible in support of the state's theory that it was written to bring the deceased- home that defendant might kill him.
    8. Criminal law <&wkey;510 — Testimony of accomplice must be corroborated.
    Defendant could not be convicted on testimony of accomplice unless corroborated.
    9. Criminal law &wkey;>824(7) — Failure to instruct as to corroboration of accomplice held not error.
    In murder prosecution, in which deceased’s wife testified for the state as an accomplice of the defendant, and identified a letter which she testified had been sent to the deceased to bring him home in order that defendant could kifl him, the failure to instruct jury that letter could not be used to corroborate the wife unless jury found that her statements connecting the accused with the writing of the letter were corroborated by the testimony, in the absence of request for such instructions, held not error.
    On Motion for Rehearing.
    10. Criminal law <&wkey;7ll — Refusal to extend time for argument held not abuse of discretion.
    In murder prosecution, in which the time for argument was agreed on between court and counsel before the argument began, and during the argument the court twice extended the time, the refusal to further extend the time after counsel for defendant had consumed one hour and 50 minutes held not abuse of discretion.
    11. Homicide <&wkey;>234(3) — Evidence corroborative of accomplice held to sustain conviction.
    In murder prosecution, in which the deceased’s wife testified as an accomplice of the defendant as to the circumstances of the killing, evidence corroborative of the wife held to sustain conviction.
    <§s»For other cases see same topic and KEY-N UMBEK in all Key-Numbered Digests and Indexes
    Appeal from District Court, Shelby County; Chas. L. Brachfield, Judge.
    Jim .Ballew is convicted of murder, and he appeals.
    Affirmed.
    
      T. H. Postell, of Center, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Appellant is condemned to confinement in the penitentiary for a period of 99 years for the murder of T. H. Musselman.

Pearl Musselman, who was indicted for the same offense, gave, on behalf of the state, direct testimony that the appellant shot and killed the deceased. Details were given. She and the deceased had been married a short time. At the time of their marriage the deceased applied for and afterwards obtained insurance upon his life for her benefit in the sum of $5,000. Appellant was present at the time of the making of the application and by his declarations to others than the accomplice manifested much interest in the policy, and learned of its issuance. According to the testimony of the accomplice, appellant made love to her after her marriage, told her he was going to kill the deceased, intercepted letters from the deceased to her, wrote anonymous letters to the deceased to c4 ase his return from Richmond, where he had gone, went to the home of the deceased at nighttime, and borrowed a shotgun belonging to the deceased, and arranged and gave a signal, upon which the accomplice brought the deceased out of his house into the yard. Appellant then suggested that they go to a neighbor’s house where he claimed a party was in progress. The three walked some distance, and appellant finally shot the deceased in the back of the head with a shotgun. After talking to' the accomplice and threatening her in an effort to prevent the disclosure, he fled. Before doing so, however, he took a watch from the person of the deceased. The accomplice brought the gun and shells which had been in possession' of the appellant to her home. Upon her entry she declared in the presence of her mother and sister that appellant had killed the deceased. According to the testimony introduced, upon examination of the gun it was found that one barrel had been fired. The body of the deceased was found at the point described by her. The wound on the head and the wadding from the shell were such as were made by the weapon described by the accomplice. The watch of the deceased was traded by the appellant to another. The state’s evidence was such as to justify the jury in the conclusion that the watch of the deceased, which was traded by appellant to a witness after the homicide and before his arrest, was the same as that introduced in evidence and identified. Certain letters which, according to the accomplice, were written by the appellant or by her at his instance were introduced in évidenee. Her statements that he had opened her mail and had intercepted her letters to her husband were corroborated to a certain degree in that persons in charge of the mail testified.that appellant had called for her'mail and had also called for letters mailed by her.. Circumstantially, it was shown that appellant and the accomplice had written a letter at the time and place designated by her which coincided with the time and place and character of stationery that the letter introduced in evidence was written.

Misconduct of the jury in discussing the failure of the accused to testify was made a ground to the motion for new trial. Oral evidence was heard. Taylor, the foreman of the jury, testified that upon their retirement he was immediately selected as foreman, and that he requested those of the jurors who deemed the appellant guilty to indicate it by standing; that they all stood; that they were then requested to indicate in the same manner whether they were for the death penalty or otherwise. Seven stood and five remained ■ seated. These five indicated that they favored a penalty of 99 years’ confinement in the penitentiary. A further discussion was deferred until the morning, when the verdict was reached. Any discussion or reference to the failure of the appellant to testify, so far as Taylor was aware, was not mentioned or considered. He denied having made any statement to the attorney for the appellant to the contrary.

Juror Pinkston testified that the matter of appellant’s failure to testify was not discussed by 'the jury nor considered by them. He corroborated Taylor with reference to the method of reaching the verdict. He admitted on cross-examination that he-heard some one say that he did not understand why the accused did not take the stand if he was- not guilty. That was after the jurors had agreed upon the guilt, but before those who were for the death penalty had. agreed to imprisonment. Ramsay, another-juror, said that he heard such a remark made, but, according to his judgment, it was after the verdict had been agreed upon. One of the counsel for the appellant testified to conversations with the jurors mentioned in which, according to his testimony, they made statements somewhat at variance with their testimony upon this «hearing.

The truth of the averments in the motion for new trial being controverted, and the persons who signed the, affidavits attached to the motion supporting the averments of misconduct of the jury having been introduced, and their oral testimony heard by the court, there was no error in the court relying upon the oral testimony in passing upon the motion for new trial. The statute (article 841, O. O. P.) vests in the trial judge the authority to hear evidence touching such averments by affidavit or otherwise. If the affidavits were considered they 'but tend to impeach the jurors who testified by contradictory statements out of court. The state having elected to controvert the motion, the burden was upon the appellant to sustain it by evidence. At best the evidence is conflicting, and it was within the province of the trial court to decide the issue of fact. There being evidence supporting the court’s finding that there was no misconduct requiring a new trial, his conclusion is binding upon this court. Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Vernon’s Tex. Crim. Stat. vol. 2, p. 793, and cases cited.

The mention of the appellant’s failure to testify, made as in this case, after the jury had reached the conclusion that the accused was guilty, and had determined that fifis -punishment should be death or imprisonment for 99 years, in view of the verdict, would not justify a reversal. Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, Ann. Cas. 1917D, 1094; Howe v. State, 77 Tex. Cr. R. 108, 177 S. W. 497; Childs v. State, 10 Tex. App. 183; Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Wilson v. State, 87 Tex. Cr. R. 538, 223 S. W. 217.

On cross-examination of the wife of the deceased, appellant asked her it it was not a fact that upon a certain occasion she attempted to shoot Will Ohadwick in the back with a pistol, and that on another occasion she attempted to poison H. H. Hutson by placing glass in his milk. • Complaint was made of the refusal of the court to receive this testimony. Its relevancy is not perceived. No connection is shown between the subject of inquiry and the cause on trial. Specific acts of misconduct not culminating in a prosecution were not available for impeaching purposes. McAfee v. State, 17 Tex. App. 138, and numerous other cases collated in Branch’s Ann. Tex. P. C., § 168.

The-shotgun which, according to the state’s theory, was used in the homicide, was introduced in evidence. The fact that it remained in the courtroom until removed upon request of the appellant was violative of no rule of evidence of which we are aware.

It was shown by bill No. 7 that after one of the counsel for the appellant had spoken for an hour and' 10 minutes the court drew his attention to the fact that the time tentatively agreed 'upon for discussing the facts before the jury had expired, and the court refused to extend the time. What length of time was consumed in argument of the case upon behalf of the appellant by the other counsel who appeared for him is not revealed. The bill, of exceptions fails to show that an unreasonable limitation was put by the court upon the argument of counsel. Parkerson v. State, 9 Tex. Cr. App. 72, and other cases listed in Branch’s Ann. Tex. P. C. § 358.

There was introduced in evidence a certain letter purporting to have been written and addressed to the deceased, signed “Rill Jones,” insisting that deceased return to his wife at once, otherwise the matter would be referred to the Ku Klux Klan. The wife of the deceased identified this letter, and testified that she had written it at the dictation of the appellant, and that he had mailed it. ,His frequent association with her was proved without controversy. His presence while “some wóman” unknown to the witness who described it was writing the letter was introduced in. evidence. The letter was relevant upon the state’s theory that the purpose in writing it was to bring the deceased home in order that he might be killed by the appellant. The fact that the accomplice testified that the letter was written at the request of the appellant and mailed by him entitled the state to introduce it. See Keel v. State, 84 Tex. Cr. R. 43, 204 S. W. 865; Bishop v. State, 68 Tex. Cr. R. 559, 151 S. W. 821. The truth of the statement of the accomplice that the appellant wrote it was like other testimony given by her, in that it was incapable of producing a conviction unless corroborated. There would have been no impropriety in instructing the jury that the letters introduced in evidence and identified by the accomplice testimony could not be used to corroborate her unless they found that her' statements connecting the accused with. the writing or mailing of the letters were corroborated by the testimony. If such an instruction had been requested, doubtless the learned trial judge would have read it to the jury. See Bishop v. State, supra. No such instruction was requested, however; nor was there complaint of the charge because of the failure to embrace that item. The state was not bound to depend upon the letter for corroboration. There were circumstances that appellant was in possession of the wátch of the deceased taken from his body at the time he was killed, and others showing his interest in the insurance •policy payable to the wife of the deceased with whom the appellant was associated and to whom he had made love. She, according to- the testimony of others, was with the appellant at the home of the deceased a short time before he was killed. He left the home of the deceased a short time before the homicide in possession of a gun which he and the accomplice used in killing the deceased. She, a short time later, returned to her home in the absence of the deceased and the appellant, and in possession of a gun which had been recently fired. The envelope containing the letter mentioned was likewise properly received in evidence.

The judgment is affirmed.

On Motion for Rehearing.

XATTIMORE, J.

Appellant urgently insists that this case should have been reversed because of an unreasonable limitation upon the time allowed for argument. It appears that there was an agreement on the part of the court and counsel before the argument began, and that during the argument the time fixed in said agreement was twice extended by the court. All together the court allowed- an hour and 50 minutes. i While the record reflects many facts and issues calling for discussion, we cannot agree that this was such an abuse of the discretion of the learned trial judge as should call for a reversal at our hands. We deem it not amiss to call attention to the importance of allowing sufficient time to discuss the issues in felony cases, apd conceive it to be a matter which should under no circumstances be made unreasonably restrictive. We have again carefully reviewed the entire record because of appellant’s claim that the evidence does not support the conviction, but are confirmed in our conclusion that there was sufficient evidence before the jury to justify their verdict. The bad character attributed to the wife • of deceased, even if conceded, would be in entire accord with the theory of the state and its testimony tending to show that hér relations with appellant were such as that she might he a participant, whether willing or unwilling, with him in the conspiracy to bring about the death of deceased, which is fully developed by her testimony. There seems ample evidence to corroborate her, as is required by law.

Believing the appellant to have had a fair trial, the motion for rehearing will be overruled.  