Mackin v. State

DICE, Commissioner. The conviction is for murder with malice; the punishment, seven years in the penitentiary. The State’s evidence shows that on the night in question the deceased and his companion, Don Wingo, were visiting and drinking beer in various bars and lounges in the city of Fort Worth. Around 11:30 o’clock, p. m., they arrived at the 312 Club on East Lancaster Street. Shortly after they entered the place appellant and James Clardy came to the table where they were seated and appellant propounded a derogatory question to Wingo. The deceased arose — 877 — from the table and Clardy grabbed him around the arms. The owner of the place then had appellant and Clardy return to the table where they had been sitting. The deceased and Wingo then went outside and got in their car. After Wingo backed the car out in the street, appellant and Clardy came outside and began “hollering” at them. The deceased “hollered” back. A shot was fired. Wingo testified that, at such time, he saw appellant standing outside the place, shooting at him and the deceased. Wingo then drove west on Lancaster Street, with the deceased sitting in front on the passenger side. While he was driving in the vicinity ■of the Anchor Motel, appellant and Clardy drove up alongside his automobile on the right in a Buick automobile. Clardy was driving the vehicle and appellant was seated in front on the passenger side. Wingo testified that at such time he saw a gun— described as a chrome-plated revolver — resting on the window sill of the Buick and pointing toward his car, and that he slowed down. The Buick likewise slowed down. He then proceeded to speed up and the Buick speeded up. While the two cars were maneuvering for position, there was cursing and arguing between appellant and Clardy and the deceased. On the third •occasion when both cars had slowed down and were practically parallel with each other a shot was fired from the Buick and the ■deceased fell to the floor board. Both cars then speeded up, the Buick turning to the right off Lancaster and Wingo proceeding west toward the downtown section of Fort Worth. Shortly thereafter, Wingo was stopped by an officer and taken to the police station for ■questioning. The deceased was carried to a hospital and was dead from a single gunshot wound to the head, caused by a .38 calibre bullet which was removed from the brain. On the question as to who fired the fatal shot Wingo testified that while he did not lenow who fired the shot he did observe before the shooting that Clardy had a handage on his right hand but that appellant had none on his hand and that there was no bandage on the hand which held the gun he saw on the window sill of the Buick from which the shot was fired. J. T. Thames, the proprietor of the Anchor Motel, and a maid, Annie May Figures, testified that they witnessed the shooting from in front of the motel. Thames testified that before the shot was fired he observed the passenger’s arm in the Buick “stretched” out, between the steering wheel and windshield, toward the other car. The witness Figures stated that she observed the passenger move his hand “over across the car.” Appellant did not testify or call any witnesses in his behalf. The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence. Under the court’s instructions, the jury were authorized to convict appellant upon their finding from the evidence beyond a reasonable doubt that he killed the deceased by shooting him with a gun, or that he did act together with some other person or persons in killing the deceased, or that some other person or persons killed the deceased but that appellant was present and, knowing the unlawful intent of such person or persons, aided by his acts or encouraged by his words or gestures such other person or persons in killing the deceased. Appellant’s first contention on appeal is that the evidence is insufficient to support the conviction. Appellant insists that this court treat the case as one showing a reasonable doubt, because the state did not introduce in evidence a res gestae statement made by the witness Wingo after the shooting, in which he told the police that it was Clardy who shot the deceased. Reliance is had by appellant upon the rule that where the state relies upon circumstantial evidence for a conviction and the evidence is obviously weak and the — 878 — record affirmatively reflects that there was testimony available to the state which would throw additional light on the facts — and which the state did not introduce or satisfactorily account for its failure to do so— this court will treat the case as one evidencing a reasonable doubt as to the sufficiency of the evidence. See: 24 Tex.Jur.2d 427, Sec. 745; Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856; Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251. While the rule relied upon is recognized by this court, it clearly has no application here, under the facts presented. The purported res gestae statement which appellant says the state failed to introduce in evidence was shown to have been made by the witness in a written statement which he made and signed after being questioned at the city hall. Such statement was clearly not a res gestae statement that would have been admissible as such. Furthermore, the witness testified before the jury that, while he did tell the officers that it was Clardy who shot the deceased, he had concluded, upon reflection, that he did not know who fired the shot. Appellant complains of certain jury argument of the district attorney. His objections to the argument are not presented by formal bills of exception but as informal bills of exception, under the provisions of subsection (c) of Sec. 2 of Art. 759a, Vernon’s Ann.C.C.P. In his closing argument to the jury, District Attorney Crouch made a certain statement to the jury, and the following transpired : Argument by Mr. Crouch: “Now, a while ago, when Mr. Mays said that he expected Andy Bryan to get up here and say ‘Convict’ because that was his job as Prosecutor-that’s exactly his job as a Prosecutor, because he is prosecuting the guilty. We do not prosecute the innocent. [“Mr. Mays: Of course, Your Hon- or, — Wait just a minute.] “Mr. Crouch: We don’t now and we never— [“Mr. Mays: Pardon me just a minute. We except to that argument, Your Honor. That’s very objectionable, and at this time we ask the Court to instruct the jury not to consider that. You heard it, didn’t you?] [“The Court: I will instruct the jury that they are the judges of the facts in this case, and shall find the facts as they are.] [“Mr. Goldsmith: Note our exception.]” Appellant insists that such argument was manifestly improper because it constituted an assertion by the district attorney as a fact that his assistant was prosecuting the guilty and that he, or his assistants, did not prosecute the innocent. Reliance is had upon Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159, which denounced as improper a statement by the prosecuting attorney to the jury that he would not have filed charges against the accused if he had not known that he was guilty. We need not pass upon the contention that such argument constituted reversible error, in view of the argument later made by the district attorney, to which appellant made no objection, when he stated: “We do not prosecute the innocent and we never shall as long as I am district attorney.” Later in his argument, District Attorney Crouch made the following statement to the jury: “Now, I want to go on further, and say that under the charge of principals, The State makes no contention who fired the shot. I just merely say that if I were to make a decision as to the best of my judgment, I would say it — 879 — was fired by this defendant. But it doesn’t make any difference, because there’s evidence aplenty that they were acting together in concert, because one man was driving, the other one was firing, or either one furnished the gun and the other fired so he could drive — ” Appellant made the following objection, which was by the court overruled: [“Mr. Goldsmith:] Just a minute, Your Honor. We’re going to object to Mr. Crouch stating as a fact that someone furnished a gun'. He knows there’s no testimony whatsoever in this record that anybody furnished anybody a gun.” Mr. Crouch then stated: “Yes, I believe it, that Mr. Mackin furnished the gun, to either use himself, or to let Clardy use it. Makes no difference * * We are unable to agree with appellant’s contention that the district attorney’s statement was outside the record. The argument was clearly a reasonable deduction from the evidence and does not present error. The judgment is affirmed. Opinion approved by the court.