
    HUMPHREYS v. STATE.
    (No. 8018.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1924.
    On Motion for Rehearing April 2, 1924.)
    1. Criminal law <©=531 (3) — Finding that confession was voluntary sustained.
    Evidence held sufficient to warrant the jury’s finding that defendant’s confession was voluntary.
    2. Witnesses <S=337(6) — Indictments for burglary held admissible to impeach defendant accused of murder.
    In a murder prosecution, where defendant testified in his own behalf, indictments against him for burglary held admissible for impeachment purposes.
    3. Criminal law <©=1169(5) — Reading of excluded part of confession and cross-examination as to similar matter held not reversible error.
    In a murder prosecution, the action of state’s counsel in inadvertently reading to the jury, as part of defendant’s confession, a statement, which had been excluded, that earlier in the night of the murder he had entered a house, which an indictment in evidence charged him with having burglarized, and in cross-examining him as to whether he had not entered another house later in the same night, held not reversible error, especially in view of the court’s immediate instructions to the jury not to consider <sueh matters.
    4. Witnesses <©=337 (6) — Defendant cannot be examined as to specific misconduct not merged into prosecution.
    In a murder prosecution, where defendant testified, the state could ask him, for impeachment purposes, if he was not under indictment for burglary, but could not prove a specific act of misconduct not merged into a prosecution.
    5. Criminal law <©=730(l) — References in argument toi officers’ activity in seeking guilty party and effect of crime on community held not reversible error.
    In a murder prosecution, argument by state’s counsel referring to defendant, to activity of officers in trying to apprehend the guilty party, and to ’ the effect on the community of the commission of crime charged, held not reversible error, in view of evidence of the officers’ activity, the character of the crime, the absence of a written request for a special charge, and the court’s prompt action in reprimanding counsel and instructing the jury not to consider the argument.
    
      6. Homicide <g=>253(l) — Conviction of murder .and assessment of death' penalty sustained. ■
    Evidence held sufficient to sustain a conviction of murder and assessment of the death penalty. ■ ■
    On Motion for Rehearing.
    7. Criminal law «>=>730(9) — Argument of state’s counsel held not reversible error, in view of character of evidence and prompt condemnation by court.
    In a murder prosecution, remarks of state’s counsel in argument that “the whole community is shocked by This awful crime, and for 10 days the sheriff’s department worked day and night trying to locate the low-down scoundrel who did it, and all the time the guilty party was right here in the shadov^ of the courthouse,” and that “I might refer to him as a distinguished citizen, but I do not choose to do so,” held not reversible error, in view of the character of the evidence and the court’? prompt condemnation thereof in the jury’s presence, not being of a nature obviously harmful. ' ' •
    8. Criminal law «>==>730(9) — Opinions of guilt and criticisms of accused not generally reversible error, when, condemned by court.
    Opinions of guilt and criticisms of accused are generally regarded as not authorizing reversal, when condemned by the court in the jury’s presence.
    Appeal from District Court, Palls County; Prentice Oltorf, Judge.
    Harle Humphreys was convicted of murder, and he appeals.
    Affirmed.
    E. M. Dodson and C. M. Pearce, both of Marlin, for appellant.
    Cecil R. Glass, Co. Atty., of Marlin, and ■ Tom Garrard, State’s Atty., and Grover .0. Morris, Asst. State’s Atty., both of Austin, for the .State.
   HAWKINS, J.

Appellant is condemned to suffer death for the murder of Lee Prazier.

Deceased lived some five miles from the city of Marlin with. Lee De Witt. Neither had families. Early on the morning of Janu- # ary 13, 1923, Mr. De Witt left home to look * after some' stock. He returned about 2:30 o’clock and found Prazier dead. He was lying on the floor near, or partly on, a shotgun. He had been shot in the neck and face. A hole had been shot through one barrel of the gun near the stock. A hole had also been shot through the door leading from outside the house into the room where the body was found. Three guns were in the room when De Witt left; only one being loaded. When he returned none were loaded. A box containing some shotgun shells was on the man-, tel in the room where the body was found and some of these shells were missing. Appellant was not arrested for some ten days after the killing. ,

What led to the arrest is only inferable from the record. A confession is in evidence in which appellant states substantially that on the morning of the killing he walked from Marlin to De Witt’s place carrying a shotgun with him; that he went to the house, and finding no one at home, opened the door and went in; that he ate some bread and meat, which he found in the kitchen, then went back to the front room where he saw the three shotguns sitting in the corner; that only one was loaded, and that he took the two shells out and put them in his pocket and got about eight shells out of a hox that was on a shelf over the fireplace; that he then went back into the dining room and had raised the top of a trunk when he heard some one come in the front door; that appellant’»'gun was leaning against the wall by the trunk and that he picked it up and shot at the man who was coming in; that he did not think the man had seen him at the time he fired the first shot; that after he fired the first shot the man ran into the corner Where the guns were and picked one of them up; that by the time he had picked the gun up appellant came into the front room and when he put his' gun on the man that time the man said, “Oh, don’t shoot methat the man had the gun up in front'of him, and that appellant shot and the man fell over by the fireplace ; that appellant then left the place and' threw the empty shells out of his gun near De Witt’s tank and reloaded it with the shells that were taken from the gun in the house; that when he came to the creek he threw his shotgun and all the shells he had into a hole of water. Appellant also hdmits in this confession that he told three different parties about having killed a man but thought they would have sense enough to keep it; he also says he had picked cotton fir Mr. De Witt the fall before, and knew the man he killed was not De Witt, but did not know who he was.

, We also gather from the statement of facts that before this confession was made appellant had told the officers about having thrown the gun and shells in the creek, from which information the gun and cartridges were recovered. Eaets were also in evidence which indicate that deceased had gone to the mail box, and that appellant entered the house while deceased was gone, and that the filling occurred upon his return with the mail.

One of the main contentions is that the confession should not have been received in evidence because it was not voluntarily made. The evidence shows that appellant really made two confessions, which were substantially the same. When the officers became convinced that appellant was the guilty party they took him from the jail at Marlin and started with, him to Waco, fearing that violence might be done him. The county at-torpey followed, overtook them, and took a confession from appellant at that time, which was written in pencil. It was not offered in evidence. There appears to have been nothing unusual about this confession or the taking of it save that when the county attorney overtook the officers they turned off the road into a field where the first statement was taken. This is explained by the circumstance of appellant’s removal from Marlin to Wacó. A few days later appellant was brought back from Waco and again placed in jail at Marlin, and the confession appearing in the record was taken by the county attorney after his return. There is not the slightest evidence in the record that threats or coercion of any kind were used to induce appellant to make either of the confessions. He does not so claim in his own testimony before the jury. He admits that the county attorney told the officers not to ask him' any questions but to let him tell his story in his own way. The only issue raised by him touching the voluntary character of the confession is that some of the officers told him he had better tell it as it would be lighter upon him. This was made an issue, and the court in a very fair and full charge submitted it to the jury, which they determined in favor of the state. We have been unable to discover in the record anything which would warrant us in disturbing the verdict upon such finding.

Appellant himself testified and affirmed the correctness of many statements found in the confession. He denied eating any food after he entered the house, and denied having examined but one of the guns which were there. He says that he did take some of the shells. He denied having opened the trunk, and claims that when deceased walked into the house appellant shot the first time, because deceased started towards the corner where the guns were, and that when he fired the second shot deceased had presented one of the guns at him. He also denied that deceased asked him not to shoot. The foregoing are practically all the variations in appellant’s testimony given before the jufy and the confession introduced. Upon the issues raised by his evidence, the learned trial judge gave an exhaustive charge favorable to appellant from every standpoint. Out of an abundance of caution he even submitted the issue of insanity when it appears to us this issue was barely raised, if at all, by the evidence, Wherever it was practicable for the state to do so it proved by facts and circumstances the truthfulness of the things admitted by appellant in his confession, even to the finding of the two empty shells near the tank where he said they- were thrown from his gun after the killing.

It appears from bill of exception No. 2 that while counsel representing the state was reading to the jury appellant’s confession he included the following sentence:

“That night about 7 o’clock, in the early part of the night, I went into Charlie Irwin’s house.”

Objection was interposed by appellant to the reading of this ‘portion of the confession, and the court immediately instructed the jury not to consider it. The learned trial judge explains this incident by saying that included in the confession were many scattered sentences and clauses which were objected to and were excluded, and that the court undertook to mark such parts on the confession so that they-would not be read: that it appeared to the court that the, reading of the sentence objected to was not intentional on the part of counsel for the state but was read by inadvertence. It further appears from the record that the state introduced in evidence three indictments against appellant for burglary; one of these charging the burglarizing of said Iywin’s house. We find also a bill of exception complaining at the admission of such indictments. Appellant had taken the witness stand and testified in his own behalf, and therefore it became pertinent for the state to impeach him in any legal way; one of which is by proving that he was upder indictment charged with a felony. The court was not in error in permitting the state to introduce such indictments for the purpose of impeachment, and the incident complained of in bill No. 2 does not occur to us to have been of such consequence as would call for a reversal, especially so in view of the fact that the court immediately instructed the jury not to consider it.

The county attorney'asked appellant upon cross-examination if he had not “about 9 o’clock gone into another house.” Objection to this question was sustained by the court, and the jury instructed not to consider it. The ground of objection is not stated but we assume it was to the form of the question. Appellant being upon the witness stand, the state could have asked him for impeachment purposes if he was not under indictment for burglary, but could not prove a specific act of misconduct against him which had not been merged into a prosecution. The mere asking of the question however does not seem to have been such an error as should entitle appellant to a new trial, in view of the court’s verbal instruction to the jury under all the facts and circumstances reflected from the record.

Appellant objected to certain language used in argument by counsel for the state in which reference was made to appellant, also to the activity of the officers in trying to apprehend the guilty party, and of the effect on the community of the commission of such a crime. Immediately upon objection being made,, the court reprimanded counsel and instructed the jury not to consider the argument. Necessarily no absolute rule can be laid down by this court which is controlling in matters of this kind. It depends upon the facts of each particular case, the character of the crime under investigation, and many other conditions which must be considered. The activity of the officers had been reflected from the evidence before the jury, aid the details of the crime were of such character as the jury might well know that knowledge thereof shocked the community. No special charge in writing was requested, and, in view of the prompt action of the court relative to the matter at the time, we are of opinion the language used was not of that character which under the circumstances of this case would call for a reversal at our hands.

The evidence leaves no doubt as to appellant’s guilt, and the facts justified ‘ the jury in assessing the extreme penalty.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

Counsel for appellant has filed an argument, showing great care and research, combating the conclusion reached upon the original hearing, relative to the incidents of the trial to which reference is therein made. This we have carefully examined, duly conscious of the importance of the matter to the accused, considering the verdict rendered. Stress is laid upon the fact, as shown by one of the bills, that counsel for the state, in the course of his argument, said:

. “The whole community is shocked by this awful crime, and for 10 days the sheriff’s department worked day and night trying to locate the low-down scoundrel who did it, and all the time the guilty party was right here in the shadow of the courthouse.’’

And further:

•“I might refer to him as a distinguished citizen, but I do not choose to do so.”

It is not shown that this argument was out of the record, but it is contended that it was abusive, and that its ,effect upon the jury was prejudicial to the appellant. The remarks were promptly withdrawn by' the court. We cannot assume that, in a case where the evidence is of the character such as revealed by the present record, the jury was led astray by the remarks of counsel which have been quoted, and which were promptly condemned by the trial court in the presence of the jury. They are not of a nature obviously harmful.

Opinions of guilt and criticisms of the accused on trial, while not to be commended, have, when condemned by the trial court in the presence of the jury, generally been regarded as not authorizing a reversal. Branch’s Ann. Tex. P. O. §§ 365, 366. We are not impressed with the view that the verdict on the present record is affected by the argument mentioned, but that it is responsive to the evidence before the jury.

The other matters mentioned in the motion have been discussed in the original opinion. 
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