Appellant was convicted for the murder of Arval Johnson and assessed the death penalty.
The pertinent facts of the case are brief. Appellant had been in the armed service during which time he learned that Arval Johnson, who remained at home, was paying attention to one Dorothy Worthy, a young woman with whom appellant had associated to some extent before the war and with whom he had been in constant association after his return until about the time of the homicide on January 20, 1947. The woman was employed in a grocery store and beer place belonging to a Mr. Christian. It was her business to come to the place early in the morning, usually around six, to clean it up and put it in readiness for operation during the day. She would then return to her room and dress and report for regular duty about 8:30 or 9 o'clock. Appellant customarily met her, either at her rooming place or the place of business, at the early hour and would help her in the work of cleaning up. For a short time prior to the homicide, however, it appears that the deceased had been giving this assistance, contrary to appellant's plans. On the Sunday afternoon prior to the homicide both deceased and appellant were in the place of business and the former left with Dorothy at about five o'clock in the afternoon. Appellant remained at the store until closing time, around eight, and left with the proprietor and others as he closed.
According to appellant's testimony he picked up a pistol back of the bar, which belonged to the proprietor, and placed it in his pocket. This he did without permission of its owner. The State has introduced evidence indicating that appellant went to the back door after the proprietor had fastened it from the inside, and released the door and probably entered sometime during the night for the purpose of securing the pistol. To the evidence so indicating appellant objected and brings forward the only bill of exception in the case and contends that such evidence is error, in that it is inflammatory and prejudicial and is evidence of an extraneous crime. The complaint will not call for an extended discussion. It is a part of the circumstances of the transaction whether he secured the gun his way or in the manner which the State's evidence would indicate. All circumstances of the transaction may go to the jury if, by a fair consideration, they afford any light on any matters at issue. Branch's Ann. P. C. page 62, Sec. 97.
The facts further reveal that early the next morning, which was Monday, Dorothy Worthy came to the store at the usual *Page 497 time for the purpose of cleaning the place up. Arval Johnson, the deceased, came with her and was assisting her when appellant appeared on the scene. There is much conflict between the testimony of Dorothy and appellant as to what took place. It is certain, however, that he entered the place of business from the rear and presented the pistol which he says that he had taken home with him and expected to return that morning. He had a bottle of whisky and presented it for the purpose of giving a drink to Johnson and Dorothy Worthy. She testified that he lined them up at the point of the pistol and informed them that they were all three to take a drink before he killed them both, as well as himself. She pretended to be sick and begged him to let her go into the rest room. While in there she slipped off her shoes and ran out the back door in her bare feet and sought a hiding place at a nearby gas station. No one was present when Johnson was killed except appellant.
Appellant testifies quite differently as to the matter of drinking and her reason for going into the rest room, but does not deny that she took off her shoes and fled. He says that he had made Johnson sit down in one of two chairs near the end of the bar; that he did so in order that he might have a proper view and time to act if Johnson attempted to draw a weapon. He then said that Johnson made a motion as if to secure a weapon and lunged toward him, at which time he fired three shots. He is positive about the number. Two bullets struck Johnson, either one of which would probably have proven fatal. They were copper tipped bullets. A third bullet was found, after the shooting, just over the back door through which Dorothy Worthy fled. This was a soft nosed bullet but of the same size as the two which entered Johnson's body. It was the State's theory that this shot was fired at Dorothy but appellant denied this and said that Johnson was in a line between his pistol and the back door at the time he shot, making it probable that the bullet found above the door was one from his gun at the time he fired three shots. The officers found two shells on the floor. A day or two later Christian found the third one. All three bullets were introduced into evidence and brought with the record to this court.
During the trial some question arose as to whether or not the soft nosed bullet came from the pistol used in killing Johnson. Appellant asked for time to have the bullets examined by an expert to determine that fact. The court declined to give the time for that purpose and proceeded with the trial. *Page 498
Appellant was arrested soon after the shooting and placed in jail. He testified in his own behalf but the foregoing statement, together with his denial that he intended to or threatened to kill Johnson and Dorothy, and the further declaration that he shot Johnson because he was making a pass at him and he did so in self defense, will constitute the important part of his testimony. His telephone conversations together with some other facts and circumstances are found in the record, but are not considered of sufficient importance to require discussion.
On a motion for new trial it was strenuously urged that a new trial should be granted because of newly discovered evidence. A ballistic expert had been consulted and would testify positively that the soft nosed bullet was not shot out of the same gun as the two copper tipped bullets. It was thought that this would disprove the State's theory that he was shooting at Dorothy and would, thereby, remove some of the inflammation which the entire record placed in the minds of the jury. Whether the evidence should be classified as newly discovered so as to demand a new trial does not, in the opinion of the writer, appear of any great importance in view of the fact that appellant himself had testified positively that he fired three times, and that the bullet found above the door was in line with the shots which he fired. It will be presumed that the trial judge was of the opinion that the new evidence would not result in a different conclusion on the subject by the jury.
The third complaint presented by the appeal relates to the evidence embraced in the one bill of exception, which indicates that the appellant broke into the store, secured the pistol during the night, and left the door open so that he may enter the next morning while deceased and Dorothy Worthy were at work without giving them warning of his approach. The objection thus treated is based on the proposition that his breaking into the store was evidence of an extraneous offense. If it be such then there would be a question as to its admissibility. However, it appears perfectly clear that under the State's theory, if he did so, it was a part of his plan and design to murder the two people. On that theory it would be admissible, as heretofore stated. Furthermore, we are unable to see any material difference in the manner of its taking as detailed by appellant himself. If one be burglary the other would, for the same reason, be theft.
A fourth complaint is based on the refusal of the court to grant a new trial because of further newly discovered evidence *Page 499 pertaining to the issue of insanity. It was urged, in said motion, that a number of people of his acquantance would testify as to his insane state, and that such facts were not known to appellant's attorney at the time of the trial. The record contains evidence of a large number of people who had known him and, apparently, were in position to testify on the subject. They were called to testify as to his good reputation. Had there been any suspicion in the mind of the attorney as to his mental condition, it would have been his duty then to have inquired of these people who knew well his reputation and to have developed the evidence on the main trial. It would be a little unusual to consider this evidence newly discovered in the face of the rules requiring diligence, as plainly discussed in many decisions of this Court.
Another and further ground presented in the brief, to show error in refusing to grant a new trial, discusses what is presented as newly discovered evidence of numerous occasions in which the deceased had beat the State's witness Dorothy Worthy. This is presented as contradictory evidence to the testimony given by the said Dorothy Worthy at the time of the trial. Such evidence is not considered important to the issues in the case that were gone into to some extent on the trial and, at most, would only be impeaching testimony. The holdings of this Court on the subject are too numerous and too clear to require citation of authorities or further discussion.
The appellant was ably represented in the trial of his case by capable attorneys who have filed in this cause an exhaustive brief on the issues presented. We acknowledge the helpfulness of such a brief in the consideration of the several questions. It also appears that the case has been fairly tried and that every right was accorded to the appellant in the court's charge. He was given the benefit of a charge on self defense, the necessity for which is doubtful. The jury was justified, under the evidence, in reaching the conclusion which they did and in fixing the extreme penalty. We find no reversible error and the judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.