Parsons v. State

ON MOTION FOR REHEARING

MORRISON, Judge.

This court has been favored by five briefs representing the efforts of as many eminent and outstanding law firms from all sections of the state. We express our gratitude for the help which these fine lawyers, as well as the attorneys representing the state, have afforded us.

We shall attempt to discuss the contentions in the order presented.

In discussing the court’s refusal to consider the motion for continuance, we first wish to disclaim any intention of holding in our original opinion, as appellant now claims we did, that an insane accused is deprived of the right to make an application for continuance. We do not think our opinion is susceptible of such interpretation.

Nor do we agree that this court is without jurisdiction to evaluate the merits of the motion for continuance because the trial court did not rule on its merits. Such an interpretation of our jurisdiction would lead to absurdities. If a trial court rules correctly but for an incorrect reason, we nevertheless support his ruling for the simple reason that the appellant has not been injured.

*405 The Supreme Court of the United States, in Helvering v. Gowran, 302 U.S. 238 , 82 L. Ed. 224 , expressed the same rule in this manner:

“In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”

When one complains of the failure of the trial court to grant continuance, it becomes incumbent upon him to show, both in the trial court and here, that he has been injured by such ruling. Such a showing is made by establishing with some degree of reliability that the missing witness would have testified to something material and beneficial to the accused. No affidavits of the missing witnesses were attached to the motion for continuance in the case at bar. This is not a prerequisite to a valid motion, but having failed to so attach them at that stage of the trial, it became incumbent upon an accused, who wishes to rely upon the alleged error of the court, to file a motion for new trial and there make his showing just as is required in cases involving jury misconduct. Without satisfactory proof to the contrary, the trial court might reasonably conclude that the witnesses would not have so testified. A mere recitation that the appellant expects to prove certain things by the witnesses is not sufficient.

In Morris v. State, 158 Texas Cr. Rep. 516 , 251 S.W. 2d 731 (writ of certiorari denied 73 S. Ct. 863 , 345 U.S. 951 , 97 L. Ed. 1374 ), in discussing a motion for new trial, we said:

“The motion should have had the affidavit of the missing witness or a showing, under oath, from some other source that the witness would have actually testified to such facts.”

Since the appellant filed no motion for new trial in this case, she merely waived an opportunity to show injury if she could, and no such showing is in the record before us; therefore, a reversal is not called for on this point.

We now approach the task of discussing the legality of the search of the appellant’s home and appellant’s contention that our original opinion has deprived her of the privileges, immunities and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.

*406 Though we do not decide the question of the search on the basis of invitation or consent, we think it is reasonably inferable from the record that appellant’s attorney, acting for her, called the officers and advised them that a homicide had occurred and that the corpse might be found in the appellant’s apartment. It was in response to this call that the justice of the peace, acting in his capacity as a coroner, arrived at the apartment, and the search followed. We conclude that the coroner was lawfully there, and it became his duty under the law to view the body and ascertain the cause of death. Appellant would have us make a distinction between evidence relating to the cause of death and evidence relating to appellant’s sanity. We do not think such a distinction exists, because both became issues in a trial growing out of the homicide. An analogy to this case may be found in the opinion of the Supreme Court of this State in Polk County v. Phillips, 51 S.W. 323 . In that case a man had been shot by the constable. This was undisputed. The sole question sought to be ascertained by the justice of the peace was the direction in which the bullet passed through the body. That question became important in determining if the homicide was culpable. In the opinion by the illustrous Chief Justice Gaines, the Court said that the justice of the peace was authorized to order the autopsy for the purpose stated. In that case, the constable was asserting the affirmative defense of self-defense, and the court held that the justice of the peace had the authority to search out information which might substantiate or refute such defense. In the case at bar, the appellant asserted the affirmative defense of insanity. By the same token, we think that the justice of the peace was authorized to search out information to substantiate or refute such defense.

Our holding is not predicated solely upon the presence of the justice of the peace. We think there is a clear distinction between the right to search predicated upon a lawful arrest or a search warrant and one predicated upon the presence of a dead body. In the latter case, it becomes the duty of one and all lawfully present to ascertain, if they can, how and by whom death was caused and any facts that would tend to show whether the homicide was unlawful or excusable.

Appellant urges us to re-examine the holding of the Supreme Court of the United States in Lefkowitz v. U.S., supra. We observe only that this was a review of trial held in a Federal court. We are impressed with the latitude accorded state court trials concerning questions of search and seizure as demonstrated by the relatively recent opinion of that court in Salsburg v. Mary *407 land, 346 U.S. 545 , 74 Supreme Court Rep. 280, 98 L. Ed________ We observe that the search in this case was nothing like as intensive as that upheld in Harris v. U.S., 331 U.S. 145 , 91 L. Ed. 1399 .

Appellant again asserts that the trial court should have submitted to the jury the issue as to the voluntary nature of the confession. Appellant confessed within thirty minutes after the officers began to question her. The only testimony relative to this questioning came from the officers themselves, and they testified that she freely and voluntarily admitted shooting her husband. The police account of the confession is undenied. “Mere detention and pplice examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained.” Brown v. Allen, 344 U.S. 443 , 97 L. Ed. 469, at p 499 . A trial court is never called upon to submit such an issue unless it is raised by the evidence.

As stated originally, the sole issue was that of appellant’s sanity.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.