Barber v. State
| Decision Date | 25 June 1920 |
| Docket Number | (No. 5634.) |
| Parties | BARBER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
Will Barber was convicted of murder, and he appeals. Reversed, and cause remanded.
S. B. Ehrenwerth, of Houston, for appellant.
Alvin M. Owsley, Asst. Atty. Gen., for the State.
The appellant is under a sentence of confinement in the penitentiary for 25 years for the offense of murder. The state's theory and testimony is that the appellant maintained illicit relations with the wife of deceased before her marriage, and continued them during the absence of the deceased in the army; that upon the return of the deceased appellant went to his home and insisted upon continuing these relations. Testimony was given that upon this occasion a controversy of some warmth took place, in which appellant, the deceased and his wife, and some relatives took part. The deceased and appellant left the house, went out on the street, and shortly thereafter the appellant fired two shots, killing deceased. Appellant testified, denying that his object in going to the premises was that claimed by the state, and denying the acts and conduct attributed to him by the state's witnesses, claiming that he visited the house to obtain some clothes that he had left there; that when he left deceased followed him, stating that he had heard that appellant had been living with his wife during his absence, and that he didn't want him to fool with her any more, and if he did, they would have trouble, to which appellant replied there would be no trouble, stating: "She married on me, and I would not be surprised if she doesn't hustle on you." The deceased, according to appellant, was enraged by this remark, and advanced with an open knife, saying: "You son of a bitch, you shan't say that," upon which appellant drew his pistol and fired.
One of the state witnesses, William Nathan, testified to various facts supporting the state's theory, and controverting that of the appellant. From his testimony it appeared that while at the home of deceased, appellant did insist upon sleeping with the wife of the deceased; that he caused her to pull off her clothes and lie down on the bed with him; that when deceased insisted upon his leaving, stating that he wanted to go to bed, the appellant replied: "If you go to bed, we will all sleep in hell." He also testified that he saw the appellant and the deceased upon the street after they left the house; that when he walked up the appellant drove him off, and told him, "Go on; this is none of your business;" that he stepped across the street, and soon after heard the shots; that immediately after the shooting he went to the deceased and assisted in carrying him to the house, and that he found no knife. He also testified that he heard the parties talking, but could not tell what they said. Appellant claimed that he did not drive the witness away, but that deceased told him to go ahead. This the witness disputed. The appellant sought a new trial upon the ground that he had discovered since the trial that the witness Nathan was a convicted felon, and the refusal of the court to award the new trial is before us for review. It was clearly made to appear upon the hearing in connection with the motion for a new trial that the witness William Nathan had been convicted of burglary, but at the time was going under the name of M. J. Jones, and his conviction was under that name. It was further shown by the testimony of one of the police officers of the city of Houston that since the trial the witness had admitted his identity with the Jones named in the judgment of conviction. It was shown that appellant had no acquaintance with the witness, and no knowledge that he had gone by the name of Jones, or been convicted under that name, and that his attorney had no such knowledge, but that on the eve of the trial they...
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