Archer v. State

• Decision Date: 04 April 1928
• Docket Number: (No. 11432.)
• Citation: 5 S.W.2d 503
• Parties: ARCHER v. STATE.
• Court: Texas Court of Criminal Appeals

5 S.W.2d 503

ARCHER v. STATE.

(No. 11432.)

Court of Criminal Appeals of Texas.

April 4, 1928.

On Motion for Rehearing, May 9, 1928.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Walter Archer was convicted of murder, and he appeals. Affirmed.

Higgins & Glass, of Marlin, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for murder; punishment, 35 years in the penitentiary.

It may be stated that all the parties connected with this killing were negroes. Several years prior to the homicide appellant had married Viola, a daughter of Nancy Johnson. At the time of the marriage, she had other children younger than Viola; they being a girl, Laura, and a boy, Willie. After appellant and Viola were married, Laura, Willie, Nancy, and Nancy's mother lived with appellant and his wife. Appellant seemed to have been regarded as the head of the family, and the relations among all the parties were pleasant. A few months before the killing, Willie married, after which Laura, Nancy, and her mother lived with Willie and his wife. Appellant and Viola lived apart but near them on the same farm. Appellant claimed on the trial that Nancy and Willie had made some threats against him, and that the relations between them were not as pleasant as had formerly obtained on the day of the killing, Willie and his wife were away from home, but returned before night. Appellant and his wife spent the day at Nancy's, and all had supper there together. Shortly after supper, while they were all in the house, some conversation came up between Laura and appellant about a puppy. All of the witnesses save appellant claimed that nothing occurred in this conversation indicating that anybody was angry, or about which there was cause for anybody to become angry. According to the state's evidence, appellant left the house, picked up a gun which had been left lying on the gallery that afternoon when appellant returned from hunting, and poked the gun in at the door whereupon appellant's wife went to him and tried to take the gun away from him; that Willie Johnson then said, "What's the matter with Walter? I will go out and talk to him;" that he stepped out on the porch and was shot by appellant; thereupon Laura went out of the house to her brother, and appellant also shot her. Willie died in a short time from the wound received, but the one inflicted upon Laura at that time did not seem to have been serious, or at least not fatal, for she came back in the house and laid down on the bed. Mr. Burton, the man on whose farm the negroes lived, heard the two shots and went near enough to the house to hear Willie ask appellant why he shot him, to which appellant replied, "You'll learn after a while what I shot you for." Appellant left, taking the gun with him, but returned later. The time intervening between his leaving and return is not definitely fixed. One witness places the time at thirty minutes, and another at an hour and a half. On the trial, appellant claimed that he returned to the house to get his coat, that his wife caught hold of the gun, and that in a scuffle over it the gun was discharged accidentally, the shot striking and killing Laura. In appellant's confession, introduced by the state, he said nothing about a scuffle with his wife over the gun when he returned to the house. On the contrary, he said no one saw him when he came back; that he saw Laura through the curtain of the door and shot the girl, thinking at the time he was shooting the "old lady"; that he wanted to kill the "old lady," but killed Laura instead. Appellant did not call his wife as a witness. His version of the killing is not supported by any evidence save his own. He claimed upon the trial that when he and Laura were talking about the puppy some anger was displayed on the part of Nancy and Willie, and that this was intensified by some of them charging that appellant had said some negro had been writing to Laura; that Willie made a threat against him, and that Nancy ordered him out of the house, threatening to "put him away" if he did not leave immediately; that he left the house, and was followed by Nancy and his wife; that he picked up the gun as he was leaving, but was overtaken by his wife and Nancy as he was trying to get over the fence; that they were holding him and trying to take the gun from him; that while this was going on Willie and Laura came out of the house and were approaching him at the time he shot them. Appellant was on trial for killing Laura.

Appellant complains of the charge on manslaughter, wherein the jury was told that the provocation must arise at the time of the commission of the offense, and that the passion must not have been the result of a former provocation, and that the killing must have been caused by passion arising at the time thereof. It is appellant's contention that no provocation occurred at the time the last shot was fired which killed Laura. In connection with the foregoing instructions, the court gave the following charge:

"Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty, in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in evidence in the case, and, if you find that, by reason thereof, the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind, in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this case you will consider all the facts and circumstances in evidence, all threats, if any, that were made by Willie Henderson and Nancy Johnson or either of them at the time of the killing or prior thereto, or any attack made by either of these parties, if any there were made, at the time of the killing or a short time prior thereto, the state of feeling existing between the defendant and Nancy Johnson and Willie Henderson in determining the condition of the defendant's mind at the time of the alleged killing and the adequacy of the cause, if any, producing such condition."

It is appellant's position that application of the instruction quoted was unavailing unless some provocation occurred at the time when the last shot was fired. We cannot agree that the evidence shows nothing to have occurred at the time which might be considered as a provocation. This whole issue gets into the case solely from appellant's evidence. He testified that when he left the house because of the threats of Nancy and Willie that his wife was the first one to overtake him while he was trying to get over the fence to leave the place and was tusseling with and holding him; that she was joined in this effort by Nancy and while scuffling with the two of them Willie and Laura came upon the scene whereupon he shot them; that he thought they were trying to hold him until Willie got to him. Appellant nowhere claims that either his wife, Nancy, or Willie was armed, or that any one ever struck him, but as far as he goes is to say they were holding and tusseling with him; that he thought if they got his gun they would kill him with it.

In his confession, appellant says:

"I shot the boy first, and I shot the girl after I shot the boy. After the shooting, I left and went to near the river, and turned around after I was a long ways from the house and when I got back to the house I shot the girl the second time. I was standing in the kitchen and shot her through a curtain door. I could see her through the curtain before I shot her. They did not see me there the second time I shot the girl. I was just standing behind the curtain door and shot through it. I left the gun there at the house. When I shot the...