Freeney v. State

LATTIMORE, Judge. Conviction for murder; punishment, death. When this case was called appellant moved to quash the in [489] dictment because of alleged discrimination against the negro race in the formation of the grand jury, appellant being a negro. The trial court heard evidence, and, examining same, we observe no testimony of such discrimination. The poll tax paying list of' colored citizens in the county was shown to be small. The jury commission were given the usual and statutory instruction by the court at the time they were impaneled. Each of them testified that they tried to select only the men best qualified to serve on the grand jury; no mention was made as to whether any man selected or left off was a negro or otherwise. The grand jury was drawn before this homicide was committed, had had one sitting, and was at recess when this killing occurred, and were called back, and returned this indictment. We see no error in the overruling of the motion to quash. A recent case is Ramirez v. State, 40 S. W. (2d) 138, in which case, upon a showing more meritorious apparently than here, a writ of certiorari was refused by the Supreme Court of the United States. Appellant on the witness stand admitted that he killed deceased by striking her with a stick. The testimony showed that the skull of deceased was crushed by a blow on the front of her head, and a witness testified that appellant said when he killed her he picked up a mesquite club and hit her over the head several times. Appellant claimed that deceased had a knife in her hand when he struck her, and that after killing her he threw both knife and stick away. Search of his house was made after the killing and a mesquite club was found, one end of which had been washed. This club weighed two pounds or more, and was •of such length and size that with it a skull could be easily fractured in the opinion of a witness who examined it. Appellant has a bill of exception in which he complains that this club was .shown him while on the witness stand, in the presence of the .jury, and he was then asked if this was not his club, and if he did not kill deceased with it, and afterward wash it off with •soap and water. Appellant objected to the question and to the ■exhibition of the club before the jury. When his objection was •overruled, he answered that the club was his, but that he did not kill deceased with it, that the club was one which he kept in "his house and carried with him when he went to church at night. We do not agree with appellant’s contention. He said he killed deceased by striking her on the head with a stick. Her skull was crushed. Search in the vicinity of the killing revealed no stick. In appellant’s house a few days later was found a ■club sufficient in length to crush a skull. Its end was washed. It was admissible in evidence. [490] Letters admittedly written by appellant to deceased were properly allowed in evidence. Appellant testified on the stand that deceased had lived in his house, and that he had many acts of intercourse with her, bought groceries for her, etc. He testified that after leaving his abode because of friction with his wife, deceased would often come at night to his house and by sounds call him out. Another bill of exception complains of a question asked appellant about some cotton choppers, which was of no possible harm and will not be discussed. Bill of exception No. 5 sets out that, appellant having told a witness that deceased got a knife out of her stocking just before he killed her, the same witness was allowed, over objection, to state that he saw the body of deceased when it was dug up where appellant had buried it, and that no stockings were on it. We have discussed each bill of exception, as is our custom in death penalty cases, but find no error in any of them. The facts show that appellant, after having practically lived with deceased, who was a noticeably small negro woman, for more than four years, during which time she had several illegitimate children, having kept up a clandestine intimacy with her after she was compelled to leave his house by his jealous wife; after being heard to say to deceased “I’ll get even with you, you are trying to run over me with your other nigger,” — killed her, and then buried her body in a shallow grave near his house. He defended on the ground that she was making an attack on him with a knife. The verdict of the jury settled the conflicts in the testimony. No error appearing, the judgment will be affirmed. Affirmed.