LUTTRELL v. THE STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 93.

Judges

HURT, PRESIDING JUDGE.

See more information ...

Smart Summary

Please sign up to generate summary.

CHARLES LUTTRELL v. THE STATE.

Bassett, Seay Muse, for appellant, filed an able and most elaborate and interesting brief in the case, from which we extract, after stating their general grounds for reversal, the several propositions and authorities considered and discussed by the court in its opinion delivered in the case.

The propositions stated by them, in full, and upon which they relied for reversal, are as follows:

1. Because of the error in overruling the motion to quash the return on the special venire.

2. Because of errors in the charges on alibi and the reasonable doubt.

3. Because of the failure to instruct as to the law of accomplice testimony.

4. Because no sufficient evidence of conspiracy was produced to authorize the submission of that issue to the jury.

5. Because of errors in the charge relating to conspiracy —

(1) In authorizing, or apparently authorizing, the jury to consider the declarations and acts of the alleged coconspirators in determining whether there was a conspiracy.

(2) In instructing, in substance, that the agreement to kill would be sufficiently proved if the proof showed that each of the alleged conspirators performed some part or act contributing to the common design, and in not instructing that to produce that result such part or act must have been knowingly performed.

(3) In instructing the jury, in substance, that in this case, in which defendant Luttrell alone was on trial, the complicity of each of the other alleged conspirators could be established by his own admission, under which charge the jury may have considered against the defendant the acts and declarations of parties whose connection with him was not otherwise shown than by hearsay evidence.

(4) In instructing the jury, in substance, that if a conspiracy to kill had been shown between the defendant and either Carlisle, Fogg, or Poe, that they might consider against, the defendant the declarations and conduct of each of the others, even though no evidence of conspiracy was produced against such other.

1. The court erred in admitting in evidence, over defendant's objection, the acts and declarations of defendant's alleged coconspirators, Carlisle, Fogg, and Poe, done and made in the absence of the defendant, because no sufficient predicate therefor had been laid; and in submitting to the jury the issue of a conspiracy, because the evidence was insufficient to establish the same.

(1) The evidence was insufficient to authorize the submission to the jury of the issue of conspiracy.

(2) The evidence of the acts and declarations of the alleged coconspirators was reasonably calculated to, and doubtless did, greatly prejudice his case with the jury.

2. The language of the third charge, in which the issue of conspiracy was submitted to the jury, was erroneous and misleading.

(1) The first paragraph of the third charge is complained of as a charge upon the weight of the evidence, the tendency of the language used being to impress the jury with the belief that in the opinion of the judge the theory of conspiracy was established by the evidence; and was, moreover, erroneous and misleading, in that it did not confine the jury to the consideration of the aliunde evidence of conspiracy, but apparently authorized them to consider the acts and declarations of the alleged coconspirators in aid of such evidence aliunde. The paragraph in question reads as follows: "I have admitted acts and declarations of J.F. Fogg, John T. Carlisle, and John Poe, on the theory that, they were coconspirators with the defendant; but the act of the court in admitting this evidence means only that sufficient evidence of the conspiracy was offered to permit the testimony to go to you, for you to determine from the evidence whether in fact there was such conspiracy; and you will, under the evidence and following charges, determine whether or not such evidence should be considered by you against the defendant."

(2) A portion of the second paragraph of the third charge, relating to conspiracy, was erroneous and misleading, in that the jury may have understood its meaning to be that a participation on the part of the defendant in the alleged conspiracy would be shown by his performance of some part or act which contributed to the accomplishment of the death of the deceased, although such participation may have been without a knowledge of the purpose to kill of other alleged conspirators. The part of the charge herein complained of rends as follows: "It is not necessary for the State to prove that the parties actually met together and made the agreement to kill; it is sufficient if the evidence shows that they performed different parts or acts, all contributing to the accomplishment of the common design."

(3) So much of the third charge as undertook to instruct the jury under what circumstances they might consider the acts and declarations of the other alleged conspirators as evidence against the defendant was erroneous and misleading, inasmuch as the jury may have understood, and probably did understand, the meaning of the charge to be, that the admission of either of the alleged conspirators that he was a party to the conspiracy would be competent evidence of the fact against the defendant in this case, and if they were satisfied of this fact from such admission, they might then consider the acts and declarations of such party against the defendant. The portion of the charge complained of is as follows: "The fact of conspiracy can not be proven by the declarations of any of the conspirators — that is, except as to the one making the declaration; but when the fact of conspiracy has been established by competent and satisfactory evidence, the acts and declarations of any one of the coconspirators are admissible in evidence against any party to the agreement."

3. That part of the fourth charge which undertook further to instruct the jury on the issue of conspiracy was erroneous, in that it was calculated to lead them to believe that if a conspiracy on the part of the defendant and either Carlisle, Fogg, or Poe was shown, they might consider as evidence against the defendant the acts and declarations of the others, although the jury might believe that no conspiracy with such others was shown. The portion of the charge complained of is as follows: "If you believe from the evidence that the defendant, Charles Luttrell, entered into a conspiracy (as defined in paragraph 3) with Fogg, Carlisle, and Poe, or either of them, to kill Sharman, then you may consider as evidence against the defendant any acts or declarations of * * * Fogg, * * * Poe, and * * * Carlisle, or either of them, which may have been detailed in evidence before you." And said error was reiterated and emphasized when in a subsequent portion of the same paragraph they were instructed under what circumstances they would be authorized to discard from their consideration such acts and declarations of the other parties named, as follows: "If, however, the evidence does not satisfy your minds beyond a reasonable doubt that the defendant, Charles Luttrell, did enter into the agreement with * * * Fogg, * * * Carlisle, and * * * Poe, or either of them, to kill * * * Sharman, then you will discard from your consideration all acts and declarations of said Fogg, Carlisle, and Poe, or either of them." Holmes' case, 9 Texas Ct. App. 313[ 9 Tex. Crim. 313]; Jones' case, 28 Texas Ct. App. 42[ 28 Tex. Crim. 42]; Tittle's case, 30 Texas Ct. App. 597[ 30 Tex. Crim. 597].

4. The charge of the court was erroneous, misleading, and defective, in failing to instruct the jury as to the law of accomplice testimony, the evidence having a tendency to show that the witnesses Robertson and Jones stood in the attitude of accessories, so as to require their testimony to be corroborated. Willson's Crim. Stats., secs. 156, 2449, 2450, 2345.

R.L. Henry, Assistant Attorney-General, for the State, also filed an able and elaborate brief in the case, from which we extract the following propositions and authorities pertinent to the issues decided by the court in the opinion:

1. The court properly admitted the declarations of Fogg, Poe, and Carlisle. The existence of the conspiracy was proven. A conspiracy can be established by circumstantial evidence. Smith v. The State, 21 Texas Ct. App. 120[ 21 Tex. Crim. 120]; Harris v. The state, ante, 411.

2. The court did not charge the law of accomplice testimony as to the evidence of the witnesses Jones and Robinson. The evidence fails to show that either of said witnesses, by any unlawful act or omission on his part, at any time was in any way connected with the murder of Sharman, and such an instruction would have been improper.

Nor did the court err in failing to instruct the jury, that if appellant was an accomplice under article 79, Penal Code, he could not be convicted as a principal. Under all the evidence, except the appellant's own testimony, he is a principal in the crime, or nothing. In appellant's testimony in his own behalf he disclaims any knowledge that a crime was to be committed, and hence fails to raise the issue of his being an accomplice.

3. It was incumbent on the court to submit the law as to the declarations of Fogg, Carlisle, and Poe, under the facts of this case, as coconspirators, and we submit that in calling the attention of the jury to this evidence paragraph 3 of his charge is not upon the weight of the evidence.

4. The court correctly told the jury, in paragraph 3 of his charge, "It is not necessary for the State to prove that the parties actually met together and made the agreement to kill. It is sufficient if the evidence shows that they performed different parts or acts, all contributing to the accomplishment of the common design."

It is difficult to see, as contended by appellant, how the parts or acts could have been done contributing to the accomplishment of the common design without knowledge on the part of the actors. A conspiracy can be thus shown. Smith v. The State, 21 Texas Ct. App. 120[ 21 Tex. Crim. 120].

1. Practice — Charge of Court — Conspiracy. — It is the province of the court to determine, in a case involving that question, whether or not a prima facie case of conspiracy has been established; and if in the opinion of the court such issue arises from the evidence permitted to be introduced, then it is further the duty of the court to submit the issue of conspiracy or not, to be determined by the jury as any other issue in the case.

2. Conspiracy, Proof of. — Ordinarily a conspiracy is seldom proved by direct and positive testimony. Generally it is proved by circumstantial evidence; that is, by proof of facts from which it may be fairly inferred.

3. Acts and Declarations of Coconspirator may be Proved, when. — The acts and declarations of a coconspirator may be introduced in evidence before the conspiracy has been established, provided it be subsequently established by the other evidence in the case.

4. Same — Charge of the Court. — See facts stated in the opinion upon which it was held, that a prima facie case of conspiracy was established, and hence there was no error in admitting in evidence against the defendant the acts and declarations of his coconspirators, and especially so where the court submitted the question of conspiracy vel non to be found by the jury, and further instructed them that if they found a conspiracy was not established, they were not to consider these acts and declarations as evidence against the defendant.

5. Charge of Court when not Excepted to — Acts and Declarations of a Number of Conspirators. — On a trial for murder, where there was testimony admitted as to the acts and declarations of several supposed conspirators, and it was objected to the charge of the court that it permitted the jury to consider threats and declarations of all, while the evidence may not have shown all to be conspirators, held, that if the objection complained of be conceded, still, inasmuch as the charge was not excepted to, and no probable injury to defendant made to appear, all the parties having been shown to be coconspirators, defendant can not be heard to complain.

6. Murder of First Degree. — See evidence which in the opinion of the court was amply sufficient to support a verdict and judgment for murder of the first degree, with the death penalty.

HURT, PRESIDING JUDGE.

On the night of April 28, 1892, W.T. Sharman was assassinated at his home in Denison, Grayson County. He was shot while asleep in the same bed with his wife and a 3-year-old child. The weapon used was a shot gun, loaded with buck shot, a number of which lodged in the body of deceased. Death was almost instantaneous. The only word uttered by him after the shot was "Mama." A ladder, the end of which was wrapped in cloth, was found resting against the roof of the house, near a window. The assassin had evidently stood on the ladder, and fired the fatal shot over the upper sash of the window, which was lowered from the top. There was no light in the room, no eye-witness to the dastardly deed, and the murderer escaped unseen. That the homicide was a cold-blooded, premeditated murder is evident.

Appellant, Charles Luttrell, was indicted for the homicide, and on the 25th day of October, 1892, was tried and convicted of murder in the first degree, and the death penalty was assessed. Judgment being entered on the verdict, he appeals to this court.

Was appellant the real assassin? Has the State shown by competent, legal evidence, with a correct application of the law thereto, that appellant was the murderer beyond a reasonable doubt, or to this court to a reasonable certainty? If so, then this judgment should be affirmed.

Counsel for appellant, with great force, contend, (1) that incompetent evidence was, over his objections, admitted against him, in this, that the acts and declarations of Carlisle, Fogg, and Poe, done and made in his absence, were not competent evidence, because no conspiracy had been shown; (2) that there was error in the charge submitting to the jury the issue of conspiracy, because conspiracy was not shown by the evidence. If a conspiracy between Carlisle, Fogg, Poe, and appellant was prima facie shown, the acts and declarations of Carlisle, Fogg, and Poe, done and made in furtherance of the common design, and pending the conspiracy, were competent evidence against appellant. Whether a prima facie conspiracy was established was a fact to be determined by the court. On the other hand, if such conspiracy was sufficiently shown to warrant the court's action in admitting the acts and declarations of Carlisle, Fogg, and Poe, then, evidently, there was no injury done appellant by the court in submitting the issue of conspiracy vel non to the jury. Why? Because notwithstanding the court may have been justified, from the evidence, in believing that such a conspiracy had been shown, still the fact of conspiracy being submitted to the jury, they might have taken another view of the evidence relied upon to establish it, failed to believe it had been established, and rejected all of the acts and declarations of Carlisle, Fogg, and Poe. It was the duty of the court to submit this issue to the jury. Appellant, on the issue of conspiracy, had two chances — first, with the court, and finally, with the jury. If, however, the conspiracy was not shown, the error of the court in admitting the acts and declarations of Carlisle, Fogg, and Poe was not cured by submitting the issue of conspiracy to the jury. The question, therefore, is, was the conspiracy sufficiently shown to warrant the court in admitting in evidence the acts and declarations of the supposed conspirators?

A conspiracy is proved either expressly or by the proof of facts from which it may be inferred. It is seldom proved expressly, nor can a case be easily imagined in which that express proof is likely to occur, unless a person implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore, the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the conspiracy may fairly be inferred. The acts and declarations of a conspirator may be introduced in evidence before the conspiracy is established, but the conspiracy must be proved. Was it shown in this case? Eliminating the voluntary confessions of the appellant, made calmly and deliberately, to Robertson and Jones, the proof of conspiracy would, we think, be sufficient; and when viewed in the light of these confessions, the proof of conspiracy becomes clear, and we think very cogent — at least sufficiently strong as to create a prima facie case of conspiracy; and hence there was no error in admitting in evidence the acts and declarations of Carlisle, Fogg, and Poe.

The charge of the court relating to the admission in evidence of the acts and declarations of Carlisle, Fogg, and Poe is objected to. The objectionable paragraph reads: "I have admitted before you evidence of acts and declarations of J.F. Fogg, John Poe, and John T. Carlisle, upon the theory that they were coconspirators with defendant; but the action of the court in admitting this evidence means only that sufficient evidence of the conspiracy was offered to permit the testimony to go to you, for you to determine from the evidence whether there was in fact such conspiracy." This paragraph of the third charge is objected to, "because it impressed the jury with the belief that in the opinion of the judge the theory of conspiracy was established by the evidence." When read with the remainder of paragraph 3 of the charge, there is no error. On the contrary, it was the duty of the judge to tell the jury that though he had received the evidence (acts and declarations of conspiracy), yet they had the right to determine whether in fact a conspiracy had been established, and if not established, not to consider as evidence against the appellant the acts and declarations of Carlisle, Fogg, and Poe. This duty was performed in plain and simple language, which could not have been misunderstood by the jury.

The remainder of the third paragraph of the charge reads: If two or more persons enter into an agreement to kill any reasonable creature in being in this State, this in law constitutes a conspiracy to commit the crime of murder, and all parties to such agreement are coconspirators. In order to constitute a conspiracy, there must be a positive agreement to commit the crime — that is, to do the act of killing. It is not necessary for the State to prove that the parties actually met together and made the agreement to kill. It is sufficient if the evidence shows that they performed different parts or acts, all contributing to the accomplishment of the common design. The agreement to commit the crime may be proved by circumstantial evidence, in like manner as other facts may be proved by such evidence, and to be governed by the same rules as are prescribed in the seventh paragraph of this charge for determining the sufficiency and conclusiveness required in cases depending upon circumstantial evidence. The fact of conspiracy can not be proved by the declarations of any one of the conspirators — that is, except as to the one making the declarations; but when the fact of conspiracy to commit a crime has been established by competent and satisfactory evidence, the declarations and acts of any one of the coconspirators are admissible in evidence against any of the parties to the agreement, for the purpose of establishing the commission of the crime. But to be admissible for such purpose, such acts must have been done and such declarations made during the pendency of the conspiracy, and in the furtherance of the accomplishment of the common purpose — that is, such acts must have been performed and declarations made after the agreement to commit the crime was entered into, and before the crime was committed."

Appellant complains of the fourth charge, because it permitted the jury to hear and consider as evidence against appellant acts and declarations of Poe, Fogg, and Carlisle, when the evidence may not have shown them all to be conspirators. The charge complained of is as follows:

"If you believe from the evidence that the defendant, Charles Luttrell, entered into a conspiracy (as charged in paragraph 3 of this charge) with J.F. Fogg, John T. Carlisle, and John Poe, or either of them, to kill W.T. Sharman, then you may consider as evidence against defendant any acts or declarations of J.F. Fogg, John Poe, and John T. Carlisle, or either of them, which have been detailed in evidence before you. But to be so considered by you, such acts must have been done and such declarations must have been made in the furtherance of the common purpose, during the pendency of such conspiracy, if you believe there was such conspiracy. If, however, the evidence does not satisfy your minds, beyond a reasonable doubt, that defendant, Charles Luttrell, did enter into an agreement with J.F. Fogg, John T. Carlisle, and John Poe, or either of them, to kill W.T. Sharman, then you will discard from your consideration in this case all the acts and declarations of the said Fogg, Carlisle, and Poe, or either of them, that have been placed in evidence before you. If you believe that defendant did enter into such conspiracy, as aforesaid, with Fogg, Carlisle, and Poe, or either of them, to kill W.T. Sharman, but do not believe from the evidence that the declarations and acts of said Fogg, Carlisle, and Poe, or either of them, or that any act or declaration of either of said parties in evidence before you, was done or made in the furtherance of the common purpose, and during the pendency of said conspiracy, if there was a conspiracy, then you will discard all such acts and declarations of either of said parties in evidence before you as does not come within these requirements."

When we consider the charge as a whole, it is very questionable whether it is obnoxious to the above objection. But concede the objection, there being no exception reserved at the time, was there probable injury resulting from the failure of the judge to nicely guard this point by instructing the jury not to receive as evidence the acts or declarations of the party not shown to be in the conspiracy? We are of opinion there was no injury resulting to defendant, because the evidence clearly shows them all coconspirators with defendant.

We have not written upon all the questions presented in argument and brief for appellant, but we have given them careful attention. We have to say of this case, that appellant has had a fair trial in all particulars. The learned judge who presided was remarkably careful, used great pains to secure to him all legal rights, and to guard him against injury from every source. If Jones and Robertson are worthy of belief, he is evidently guilty of willful, deliberate, and premeditated murder, and should suffer the extreme penalty of the law; and the judgment is affirmed.

Affirmed.

Judges all present and concurring.

CHARLES LUTTRELL v. THE STATE.

Comments