Barr v. State

• Decision Date: 09 December 1942
• Docket Number: No. 22229.,22229.
• Citation: 172 S.W.2d 322
• Parties: BARR v. STATE.
• Court: Texas Court of Criminal Appeals

172 S.W.2d 322

BARR v. STATE.

No. 22229.

Court of Criminal Appeals of Texas.

December 9, 1942.

Rehearing Granted May 5, 1943.

Rehearing Denied June 23, 1943.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Juanita Elizabeth Barr was convicted of murder without malice, and she appeals.

Judgment reversed and cause remanded for a new trial.

Hughes & Monroe, of Dallas, for appellant.

Dean Gauldin, Cr. Dist. Atty., and Chas. A. Pippen, Asst. Cr. Dist. Atty., both of Dallas, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Under an indictment charging that appellant killed and murdered Blanche Woodall, with malice, appellant was convicted of murder without malice and her punishment assessed at four years' confinement in the state penitentiary.

About eight o'clock on the evening of Saturday, April 12, 1941, appellant drove to the home of the deceased, carrying with her, in a purse, a bottle of whisky and a .38 caliber pistol. The deceased was not at home. The maid advised that she would soon return. Appellant waited for her awhile, during which time she drank some of the whisky. She left, advising the maid that she would return later. A short time thereafter, appellant and deceased entered the house together. The inference is that appellant met the deceased as she was leaving the house and returned with her. The two remained in the house together from that time until the homicide occurred about 11:00 or 11:30 P. M. During this time, the two drank whisky and more was ordered sent in. Among the things transpiring between them was that the deceased dressed the hair of appellant, powdered and rouged her face, and put "eye-shadow" under the eyes. The maid said that appellant suggested to her: "We are all right, you can go see about the kids"; whereupon she left the room, believing that they wanted to talk over something which they did not want her to hear. The sole occupants left in the room were the appellant and the deceased. The maid had been out of the room about ten minutes when she heard a pistol shot and a woman scream, followed by another shot. She rushed to the room and met appellant coming out. She inquired of her what had happened, to which appellant made no reply. But, upon being told by the maid that she was going to call the police, appellant replied: "No need, I am going to do the same thing to myself." With this statement, she left the house. The deceased was found lying upon the floor, with two bullet wounds in her body, one having entered at the corner of the left eye and passing across and through the right eye. Around this wound was a gunshot powder burn, about the size of an orange. The other wound was in the back of the head. No powder burns were around it.

The testimony further showed that, after the shooting, appellant drove to a downtown cafe, where she delivered the pistol to her husband, who in turn delivered it to the proprietor of the cafe and in whose possession it was found the following day by the officers. After delivering the pistol, appellant drove to a tourist camp, where she obtained quarters, registering under an assumed name. She was located in the tourist camp, the next morning, by peace officers, and to whom she gave still another name, denying that she was the appellant. After some questioning, she finally admitted her identity.

The foregoing constitutes a brief statement of the State's case and shows a killing, both unjustified and unexplained.

The defensive theory was that, for some time prior to the homicide, the husband of appellant had been keeping company with the deceased, and that, at various times, they were seen together in public. The State made no contest of this fact. According to appellant's testimony, she first became acquainted with such fact about eight months prior to the killing; that she remonstrated with her husband about such conduct, and each time he would agree to discontinue such relationship. It appears that the deceased was contacted about the matter, and that she also agreed to discontinue, but that, at a later date, she told appellant that she was not going to give up the husband. Appellant charged that the affair between the husband and deceased was illicit. According to appellant's testimony, she decided to give the husband a divorce. About two weeks prior to the homicide, the husband moved out and took a room at a local hotel, where he continued to reside. He left some of his clothing at the home and in appellant's possession. On the day preceding the homicide, he went by the home and changed clothing, leaving his suit, with the request that appellant send it to the cleaners. Appellant said that, on the morning of the day of the killing that night, she went to get the suit to send it to the cleaners, as requested, when she found, in the pocket of the suit, a letter, which was undated and addressed to "My dearest", and signed "Mrs. Kelly". This letter was in endearing terms, and professed her love for "Eddie" (the husband's given name). Also, this letter referred to, and appeared to be written to, "Mr. Kelly". Appellant said that her husband and deceased referred to each other as "Mr. Kelly" and "Mrs. Kelly". It is interesting to note that proof of the fact that this letter was written by the deceased depends solely and alone upon the uncorroborated testimony of the appellant. The husband did not testify as a witness in the case, nor was the handwriting identified as that of the deceased. Appellant said that, upon finding this letter, she was heartbroken; that, from the letter, she got the idea that deceased was preparing to leave with the husband; that she decided to go and see the deceased, with a view of frightening her into leaving the husband alone; that, with this in mind, she left her home, carrying with her a pistol; that, when she arrived, the deceased was not at home; that she waited for her to return and was preparing to leave when she met the deceased; that they went into the house, where she told deceased of her having found the letter; that deceased admitted having written it, but denied that she and the husband were preparing to go away together, saying that she had not seen the husband for days, and that it was all over between them. Appellant said that the deceased then suggested that she use more "make-up," as her husband liked it, and that, as a result of this advice, the deceased did fluff her hair, powder and rouge her face, and put on eye-shadow; that she was preparing to leave when the telephone rang in an adjoining room; and, as to what then happened, we quote, from the appellant's direct examination, as follows:

"I then started to get up to leave and the telephone rang and she got up to answer it—I was standing there by her * * * I pulled this pistol out * * * it was Eddie on the 'phone. I said, `Let me talk to Eddie' * * * and she said, `Call me back later, Mr. Kelly' and hung up * * *, and I pulled this (indicating pistol) out—and I don't know—she grabbed my arm—I don't know what happened— Oh, Oh, I don't know what happened.

"When Mrs. Woodall told me that she was not seeing Eddie or talking to him on the telephone and that she was through with him, I tried to believe her because I wanted to believe her * * * then * * * I heard his voice on the 'phone and I knew it wasn't so.

"I do not know how many times that gun went off * * * I am trying to compose myself.

"As to what I said to Mrs. Woodall when she hung the 'phone up and I pointed the pistol, I don't remember; I think I said, `I came here to frighten you if you were not telling the truth about this letter'; and she grabbed at the pistol. I don't know what hand I had the pistol in or how I had it; I don't know what happened there. I don't know whether she had hold of the pistol at the time it went off or hold of my arm.

"I did not intend to kill Mrs. Woodall."

On cross-examination, the appellant was more indefinite relative to what transpired just before and during the shooting. She just did not remember.

A further statement of the defensive theory is not deemed necessary, except to say that there was testimony tending to show that appellant was temporarily insane at the time of the killing. In rebuttal of the defensive testimony, the maid testified that the telephone did not ring, and that no telephone conversation was had, as testified to by the appellant. Under the foregoing facts, the cautious trial judge submitted, as affirmative defensive theories, temporary insanity, self-defense, and accidental homicide. The issue of suspension of sentence was also submitted.

The extended statement of the facts is deemed pertinent in view of the question presented for review, in approaching a discussion of which it is well to keep in mind that the law does not justify the wife in killing the husband's paramour just because of such relationship. So, in this case, the facts tending to show that the deceased and the husband were guilty of illicit relations, afford no justification or excuse for this killing. Evidence of such relation was for the jury's consideration in determining whether the killing was with or without malice.

During the trial of the case, the State contended that the husband was, what might be termed, a "man about town"; that his illicit conduct was not limited to the deceased only, but that he was guilty of such relations with others; and that the appellant knew of such fact. The appellant denied that she knew of any such other relations on the part of the husband, and asserted that none existed.

A sister of the appellant testified in her behalf with reference to a conversation she had with appellant relative to the conduct of the husband and deceased. Upon cross-examination of the witness, the State asked her if, in such conversation, the appellant had not said to her: "maybe it will pass over as with the other women." The witness denied that the...