Moore v. State

The offense is murder; penalty assessed at confinement in the penitentiary for eighteen years.

Appellant shot and killed Tillie Clayton with a pistol. The deceased and his wife were separated though not divorced. The deceased had been living in Abilene but came to Waco on Thursday before the homicide on Sunday night. While he and his estranged wife were sitting in an automobile at night in front of her house, the appellant came to the car, jerked her out of the car by taking hold of her wrist and then shot the deceased who was sitting at the steering wheel. After being *Page 139 shot, the deceased told the witness to get out of the car at once. He then drove away. After the appellant fired the shot at the deceased, he walked off. In firing the pistol the appellant held it right behind the witness, Margaret Clayton, thereby causing powder burns on her neck.

The written confession of the appellant was introduced in evidence from which it appears that he and his wife were separated, though not divorced; that he had been living with the wife of the deceased during the latter's absence. Appellant came home from work about nine o'clock on the night of the homicide. Failing to find the deceased's wife at her home, the appellant went to his home and changed clothes. He then returned to the place where she lived and ate supper. After sitting on the front porch for some thirty minutes, the appellant again went to his home, got his pistol and went back to the home of Margaret Clayton where he waited until she and the deceased arrived. About five minutes after their arrival, the appellant went to the car and asked Margaret Clayton what that meant, to which she made no reply. According to the appellant, the deceased then said: "What in the hell is the matter with you." Appellant replied: "Hello, Tillie." The deceased said something which the appellant did not understand. Margaret Clayton got out of the car, and the deceased moved around in it. The appellant then shot the deceased and walked home. Appellant was arrested the next morning while sitting on the porch of the house where Margaret Clayton lived.

Appellant testified upon the trial, his testimony being in substance the same as that set forth in his written confession.

The State introduced the witness, Jerry Whiteside, who testified that the appellant had said some two or three weeks before the homicide that he was going to kill Tillie Clayton whenever he came back to Waco. The witness also testified that appellant told him where he might find the pistol after the homicide.

The pistol with which the homicide was committed was introduced upon the trial and identified as that used by the appellant in the shooting of the deceased.

The bill of exception found in the record does not bear the approval of the trial judge. In the affidavit of the attorney for the appellant, it is made to appear that he prepared and presented to the trial judge on December 4, 1936, the bill of exception attached to the affidavit; that on the morning of December 19th, the attorney went to the office of the judge and was informed that the judge had gone out of the city and *Page 140 would not return until the following day. According to the certificate of the trial judge, when the bill of exception was first presented to him he was engaged in the trial of a civil case; that on the morning of December 19, 1936, the bill was taken from his office during his absence; that if the bill had been left in his office it would have been acted upon within the prescribed time.

It is a general rule that a bill of exception which does not contain the signature of approval of the trial judge cannot be considered on appeal. Art. 667, C. C. P. See, also, Duncan v. State, 98 S.W.2d 822.

Deeming the evidence sufficient to sustain the conviction and perceiving no error justifying a reversal, the judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING.