Murder. Appeal from the Criminal District Court of Harris County; penalty, death. Hon. E. B. Duggan, Judge Presiding.
J. E. Winfree, Sr. and Joe Ed Winfree, Jr., Houston, for appellant.
Dan Walton, District Attorney, Samuel H. Robertson, Jr., Lee P. Ward, Jr., Gus J. Zgourides, Assistants District Attorney, Houston, and Leon Douglas, State's Attorney, Austin, for the state.
[ 171 Tex. Crim. Page 314]
The offense is murder; the punishment, death.
The appellant and Adrian Johnson were jointly charged by indictment with the murder of William Merrill Bodenheimer.
Upon the granting of a severance, Johnson was separately tried and convicted with his punishment assessed at death. Upon appeal to this court, the judgment of conviction was affirmed in an opinion which is found reported in Johnson v. State, 169 Tex. Crim. 612, 336 S.W.2d 175.
The facts in the two cases are similar and show that on the afternoon of July 20, 1959, the deceased, a young boy twelve years of age, left home on his bicycle to go swimming. Upon his failure to return at the expected hour, a search was made for him which ended at 9:45 a.m. on the following morning, July 21, when the nude dead body of the deceased was found inside a closed refrigerator in a small shack.
It was shown that on the evening of July 20, the appellant was seen around 6 p.m., with Adrian Johnson and some other boys at the Chuck Wagon, an eating place located a short distance west of the shack where the deceased body was found. At such time the deceased was also seen at the place and, as the appellant and his companions walked by, appellant was heard to say "Let's get the white boy when he leaves here." Thereafter, the deceased was seen to get on his bicycle and travel in the same direction the appellant and his companions had gone.
On July 21, appellant was arrested without a warrant at his home around 11:15 p.m. by Lt. T. F. Clark of the Robbery Division
[ 171 Tex. Crim. Page 315]
of the Houston Police Department and taken to the police station for questioning concerning several robbery cases. During the questioning, appellant implicated himself in the murder of the deceased, and after being duly warned by Lt. Clark, made and signed a written statement on July 22 at 7:25 a.m., concerning the killing of the deceased which was introduced in evidence over appellant's objection as State's Exhibit No. 13.
In the statement appellant stated that on July 20, 1959, he was in company with his brother Ira Lee Saddler, Adrian Johnson, David Clemens, and Charles Archer; that around 6 p.m., as they were walking on West Gray, Charles Archer hit and knocked a white boy off a bicycle who looked to be about "ten or eleven"; that appellant and Adrian Johnson then grabbed the boy and "packed" him across the street; that Clemens picked up the boy and "packed" him to a little house while Archer was holding the boy's mouth to keep him from "hollering"; that Clemens took the boy inside the house and they all went inside except appellant's brother who stayed outside and brought the boy's bicycle to the house. Appellant then related how, after going inside the house, Clemens and Archer took off the boy's clothing and Clemens, Adrian Johnson, the appellant, and Charles Archer, in the order named, proceeded to commit rectal sodomy upon him. Appellant stated that after he had finished committing the act he went outside, that he went home, and that later in the night he saw David Clemens who told him that Adrian Johnson and David Clemens "had put the white boy in the ice box that was inside the little house."
It was shown by the testimony of Chemist and Toxicologist Robert F. Crawford of the Houston Police Department that a human hair found in the hip pocket of the trousers of Ira Lee Saddler (appellant's brother) compared with and had identical characteristics with hairs taken from the head of the deceased and from his pubic and anus region. It was also shown that on July 24 Chemist Crawford examined the bodies of the appellant and Adrian Johnson and was present when pictures were taken of them. He stated that in his examination of the appellant he found "on the underneath side of his penis near the head * * * what appeared to be an abrasion or a bruise which was close to ...