holding that record demonstrated egregious conduct and bias where trial court assessed punishment by summarily doubling a prior sentence
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- holding that record demonstrated egregious conduct and bias where trial court assessed punishment by summarily doubling a prior sentence
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The opinion
ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Judge.
Upon original submission appellant predicated his appeal upon six points, three of which are re-urged in his motion for rehearing, namely:
1. The insufficiency of the evidence to show that the homicide was committed by the means, and in the manner alleged in the indictment.
2. The error of the court in admitting the evidence of Dr. Shaw concerning an autopsy performed on the body of the deceased, over the appellant’s timely objection that a legal inquest had never been held, and in the absence of which, evidence obtained as a result of the autopsy was inadmissible.
3. The error of the court in giving to the jury the instructions contained in Paragraph 8 of the charge (quoted in our original opinion and submitted as fundamental error).
We will attempt to comply with appellant’s request that we set out the testimony which, we find in the record to support our conclusion that the evidence is sufficient to sustain the allegation of the indictment \ c by strangling her with V ,v ■ -he appellant killed the deceased bn cord.
It is to be rememberer stantial evidence to prove i ceased, as well as to prove killing. t the state relied upon circum:ct that appellant killed the demanner and means used in the
The statement of appe officers to the body of tin though in the nature of a • mission that he killed the cord in doing so, or in fact upon her. k and his actions in leading the eceased and her buried clothing, cession, did not constitute an ad-eased, nor that he used a cotton it he inflicted any serious injuries
*283 He did admit to the officers that after he had slapped the deceased and had been slapped by her, he next saw her in the back of the car by the aid of a flashlight and saw that the deceased “had a cord around her neck several times”; that she was black in the face and blood was oozing out of her mouth.
Appellant had purchased about ten feet of cotton cord at a hardware store in Amarillo late that afternoon. He disposed of the packages which he claimed were to be tied, but the cord was in the car when he drove Joyce to the lonely spot where she met her death. He buried some of her clothing, then her body. He then gathered the remainder of her clothes and the cotton cord and buried them at another place. When he led the officers to the spot and dug up these articles the cord had spots of blood on it which was of human origin.
Referring to the articles he buried after he had removed the body of the deceased from the car, which articles included the cotton cord, he testified that he wanted to get rid of everything that had to do with Joyce. The cotton cord was the only article he buried that did not belong to the deceased.
Dr. Shaw gave testimony as to the appearance of the head and neck of the deceased’s body and the cause of her death, as quoted in our original opinion. She also testified: “I have summarized to you the appearance of her head and neck, which were swollen and blue, and the appearance of hemorrhages in the soft tissues around her eyes and her lips and mouth. Also, the fact that she had - - these changes started from the bottom part of her neck, around her neck, and including the top of her head and neck are all positive evidences of strangulation and - - around the neck and the subsequent cutting off of the air, which would be smothering or what we call asphyxia.”
We held on original submission that the doctor’s testimony was admissible. If it was, the testimony above mentioned, together with that set out in our original opinion, is sufficient to support and sustain the finding of the jury that appellant killed the deceased by strangling her with a cotton cord, as charged in the indictment.
We pointed out in our original opinion that no testimony was introduced as to any autopsy made of the deceased. Whether such be an essential or not, an autopsy is more than an inspection and usually includes a partial dissection of the dead body.
*284 The question of the availability of testimony given at the inquest, or acts or findings of the magistrate is not before us. The doctor testified as to what she observed in her examination of the body and we hold that it was not incumbent upon the state to prove that a legal inquest or autopsy was held, as a predicate to the admission of such evidence. It was not evidence unlawfully obtained.
Our view as to Paragraph 8 of the court’s charge, which is set out in our original opinion, is that it does not under the facts here authorize a reversal. As we view this instruction, the trial court was attempting to protect appellant’s rights in the event the jury should construe appellant’s statement to the officers as a confession and should entertain a doubt as to its voluntary nature. Viewed in this light it was more favorable to the accused than he was entitled to.
When the court’s charge containing Paragraph 8 ,was presented to appellant’s counsel, he filed no objection calling the trial court’s attention to his use of the term “oral statement” and to the possibility of the jury applying the instruction to appellant’s testimony or to statements that were not in the nature of a confession.
Had this been done as the law contemplates, or had appellant expressed a dissatisfaction with the charge, it would no doubt have been amended. If not appellant would have been in position to present the matter for review.
Remaining convinced that the appeal was properly disposed of on original submission, appellant’s motion for rehearing is overruled.