Alexander v. State

• Decision Date: 12 April 1911
• Citation: 138 S.W. 721
• Parties: ALEXANDER v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 721

ALEXANDER v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1911.

On Motion for Rehearing, June 23, 1911.

Appeal from District Court, Harrison County; W. C. Buford, Judge.

Bill Alexander was convicted of murder in the first degree, and he appeals. Affirmed.

Lane & Lane, Y. D. Harrison, and M. B. Parchman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

The appellant in this case was indicted by the grand jury of Harrison county, charged with the offense of murder. Upon a trial he was convicted of the offense of murder in the first degree, and his punishment assessed at imprisonment for life.

In the incipiency of a discussion of this case, we want to say that we regret very much to disagree with our presiding judge in his opinion in this case, but, as we read this record, it presents the most aggravated case of murder that has come under our observation during the time we have been on the bench. The evidence, from the standpoint of the state, shows that in the latter part of June defendant went to the home of Jim Olive, and hollered to him to "hide out," that he, defendant, had been before the grand jury about Olive having a pistol, when Olive replied that defendant would not have had to do so if he had not "harped it all over the county." Defendant called him a liar, and reached for a gun he had with him Olive struck him over the head with a hoe, and knocked defendant to his knees as he reached for his gun. While on his knees, he again made an effort to get his gun, when Olive again struck him with the hoe handle, and took the gun again away from him pointing it at him, when defendant begged. Olive then took all the shells out of the gun, and gave it back to defendant, and told him to go home. Defendant then asked for some water, and Olive sent for the water, and washed all the blood off of defendant, and again told him to go on home. At this time deceased, F. T. Wagnon, drove up, and defendant and deceased spoke, and defendant asked deceased to take him home in the buggy. Deceased replied his horse was tired. Defendant then shook hands with Olive, and asked him and his wife to pardon him for his conduct, but declined to shake hands with Wagnon. He started on home, and, after getting about 100 yards from the house, he called Olive. Getting no answer, he cursed him. He then called Wagnon, cursed him, and told Wagnon "he (defendant) had been on his trail for a month, and would stay on it until he got there." Defendant in his testimony says he was drunk, and does not know what took place that evening, except that he got several severe blows. As defendant walked off, cursing, it was suggested that he would come back and give trouble. Olive sent for a neighbor to come and stay with him, and A. M. Chadwick did come to Olive's house, and Mrs. Olive, her son, and Chadwick all testify that that night, while the family was sitting on the porch, defendant did come back and hollered, and fired his gun, some saying the shots struck the house. Chadwick testified that he heard defendant cursing, and heard him say he was on deceased's damn warm trail, and would not sleep much until he got him; that deceased was a d____n s____n of a b____h. They went in the house and Olive got his gun and went out, and his dog bayed the man doing the shooting in a clump of bushes, when the man shot the dog and killed it. Several shots were exchanged that night, but no one injured. Defendant filed a complaint against Olive, and Olive filed complaints against defendant. The feeling was very bitter, and threats pro and con are testified to by witnesses. Olive and Wagnon were brothers-in-law, and were witnesses in the cases against defendant, while defendant was a witnesss against Olive. They all carried guns with them wherever they went away from home. On the day of the killing they were all under bond to attend court at Marshall. Defendant says: He saw Olive and Wagnon pass his house on the way to Marshall that morning, and he did not go because he was afraid they would have trouble. That he went over to Castleberry and Rodden's mill that morning and talked to Mr. Bass and stayed around there some time. That he did not phone the sheriff at this time, because he had not fully decided not to go to Marshall. That about 4:30 that evening he started again to go back to the mill, carrying with him a Winchester and a shotgun for protection, to telephone the sheriff why he had not come to court. That on his way to the mill, when about one-fourth or one-half mile from home, he saw deceased and Olive come driving towards home, and they had their guns, and he stepped out of the road to a tree about 15 or 20 feet from the road, set his Winchester against the tree, slipped the safety on his shotgun, and waited for them to pass, not intending to shoot them if they made no attempt to harm him, but to be in position to defend himself. That, before they got quite even with him, they turned their heads towards him, and Wagnon started to raise his gun, when he shot five times in rapid succession. Wagnon fell soon after he began to shoot. As Olive did not fall at the first five shots, he loaded his gun and fired again, when Olive fell back in the wagon. He thought they were going to kill him, and he shot to protect himself. On cross-examination he said he could not see what Olive was doing, as Wagnon was between him and Olive.

A. M. Chadwick, a witness for the state, testified: That he went to town along with Wagnon and Olive that day. That they started home first, but he overtook them. They were riding in a wagon, sitting on a spring seat, sitting side by side. That a rain came up, and they all stopped in a house. After the rain ceased, they all started on, talking. Nothing was said about defendant. That just before they got to Cypress bottom they reached down in the wagon and got their guns, Wagnon taking his in his hands and Olive putting his down in front of him. Olive and Wagnon had to pass defendant's home in going to their home. That he, Chadwick, dropped behind them. That they had traveled about 350 or 375 yards when he heard the shooting. That he had seen them do nothing, and that he had not seen defendant until after the shooting was over. That he rode by and saw defendant standing about by a tree with a gun in his hands. That he could only see from his waist up, as there was a brush pile between defendant and the road that he and Olive and Wagnon were traveling. Defendant said he did not know why he tried to hide when he saw Chadwick. That he did not know Chadwick was there until the shooting was over. Defendant then went on to the mill, he says, to telephone the sheriff. A witness says, when he got there, he said he had "two bucks out in the road." This defendant denied, but says he said that he thought the "little trouble was over."

Dr. Allen testified: He examined the bodies of both Wagnon and Olive. That Wagnon was lying on his back, with his feet over the seat, with his gun grasped in his hand. That Olive's body was in the wagon, with one foot over the seat and his gun was under the seat. Wagnon had 11 shots in his head, 16 shots in his shoulder and neck, and 1 through his nose. The shots entered from the left side. Olive was shot much in the same way. There were seven shots in the left side of the head, one in the back of the head, and the balance just over the ear. The shot entered from the left side. There were shot in Olive's left shoulder, and from his waist up. The wounds in the head of both of them were instantly fatal. The wounds in the body were fatal, but not immediately fatal.

Deputy Sheriff Luke Cole testified he went to the scene of the killing, and says: "That oak tree was I suppose 24 inches in diameter. They were, I suppose, 12 or 15 feet from the road. There was a tree top there, pine top, and I should say it was something like 35 maybe 40 feet long—that tree top was laying very near parallel with the road, and it lay right against the oak tree. Part of the top struck the oak tree and fell back, and the other part lay within 2 or 3 feet of the oak tree. The main body of the top extended towards Marshall and was 4½ or 5 feet off the ground. I did make an examination around the root of that tree. Well, I found where there had been parties walking around and standing around there, and I found seven shells there. I did see some ambeer and some whittlings at the root of the tree over behind the tree, where there had been three little twigs bent, and then back in the center of the top, maybe 12 or 15 feet, was another beat-out place, and there I found some cigarette stubs and burnt matches. These bent twigs were under the main body of the tree and made a blind, and these cigarette stubs and matches were right behind them limbs. As I first went out from behind the top, I found one red shell about 3 feet from the butt of the tree top, and about the center I found three red shells that had short brass bases and in the top about 3 feet from the standing tree I found three shells with a large brass base. There was nothing peculiar about those shells any more than they had the appearance of being reloaded and sewed across the ends with threads. These are the shells that I found. I found those three up next to the oak tree, which are the ones I called with large brass base, and those three I found in the center of the top, and this one here that had been mashed or crumpled I found at the foot of the log towards the bridge. Right against the tree, which is represented on the map by the letter `A' I found evidences of the ambeer and whittling, and in the center of the pine top, represented by letter `B,' I found the shell at the butt of the log, and then I came on up here and found three there about the center of the pine tops, and then I came on up to the oak tree and found three there —the shells and 2 or 3 cigarette stubs and burnt matches I found in the center of the tree top." He...