Baum v. State

• Decision Date: 22 June 1909
• Citation: 133 S.W. 271
• Parties: BAUM v. STATE.
• Court: Texas Court of Criminal Appeals

133 S.W. 271

BAUM v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1909.

On State's Motion for Rehearing, December 8, 1910.

On Appellant's Motion for Rehearing, January 4, 1911.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

J. D. Baum was convicted of murder in the second degree, and he appeals. Affirmed.

Chandler & Pannill, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

COBB, Special Judge.

Appellant was indicted January 4, 1909, for the murder of Edgar Watson, and tried and convicted on the 21st of murder in the second degree, and he has brought his case before this court, and here seeks a reversal upon the grounds herein considered.

That the court permitted the state to prove by Tom Knight that after appellant had cut deceased, and was being followed by witness with a rock, Mary Watson commanded witness not to throw the rock "in here," but to throw it down, defendant's objection being that this remark of Mary was irrelevant and the declaration of a bystander, and took his bill. The court in explanation of the bill shows that defendant had just cut Knight's hand, and was following him with a knife; that he considered it res gestæ He also states that the state contended that there had been illicit relations between defendant and Mary, and that the other members of the family, including deceased, opposed his course with Mary, and defendant held malice against them on that account, and, further, that she was standing by the defendant when she spoke the above words to Knight. We do not believe it was res gestæ. Kennedy v. State, 57 S. W. 648; Felder v. State, 23 Tex. App. 477, 5 S. W. 145, 59 Am. Rep. 777; Holt v. State, 9 Tex. C. App. 571. Was it admissible because the state was seeking to establish criminal intimacy between Mary and defendant, and resultant enmity between defendant and her family, and that she was friendly towards defendant? We think so, and as the same matter as herein involved is set out in bills of exception Nos. 3, 4, 5, 6, and 8, relative to the admission of testimony tending to show undue intimacy between appellant and said Mary, we deem it well to set out at some length the state's testimony showing the circumstances of the homicide, and the conduct of appellant with the said Mary, all the latter being at the time excepted to as shown in the record.

The facts are rather voluminous, but, in substance, the witnesses state that on the night preceding the 25th of December, which was the day of the homicide, appellant, his wife, and a five year old daughter spent the night with W. A. Daugherty. On the evening preceding the 25th of December, or Christmas Eve, there was a Christmas tree at the residence of Mrs. Frankle Watson, who was the mother-in-law of appellant. The family of Mrs. Watson, children and grandchildren, had gathered from different sections to spend Christmas with their mother and grandmother. The house being overcrowded, appellant and his wife, daughter of Mrs. Watson, and their little child spent the night with Daugherty. The next day Daugherty and his family, and appellant and his wife and child returned to Mrs. Watson's residence to enjoy a Christmas dinner with the remainder of the family and friends. There were quite a number of these. The witness Daugherty testified, in substance, that he and appellant had taken two or three drinks before going over to the residence of Mrs. Watson, There had been some target shooting in Mrs. Watson's yard, in which several of those present engaged. Deceased was in the house playing an organ at the time that Daugherty went into the residence from the yard. While Daugherty was sitting in the room appellant came in, and began talking to Mrs. Jennie Watson, his sister-in-law. He asked Jennie Watson if he had hurt her feelings. She replied, "No; my feelings are not hurt." After this Mrs. Jennie Watson went out of the room, and appellant's wife came in and talked to appellant. His wife said to him, "There is nobody mad at you J. D." (meaning defendant). Appellant replied, "I thought you said the whole damned push was going to get on me?" She said to him, "No; I didn't say that, but if you keep on you will have them mad at you." Appellant then said, "All right," and turned and started towards the door where witness was. Witness got up and started towards the south door, going out on the porch. Before this witness passed out the door, deceased came in at the east door, and when just inside the door said to appellant: "J. D. there is nobody mad; all we want is for you to keep quiet." Appellant then turned, and raised his right hand, and said to deceased, "Damn you, make me do it." At that time they were out of the witness' sight. This witness did not see the encounter, but described the wounds. This witness also says as far as he could observe appellant up to the time of the conversation detailed was in a pleasant humor with everybody. Mrs. Jennie Watson testified in regard to the family reunion, and said that on the morning just preceding the difficulty she was in the dining room of her mother-in-law, Mrs. Watson, preparing the dining table for the Christmas dinner, when she heard her little boy, about five years of age, crying somewhere about the place and heard defendant talking to him, but did not hear anything he said. Just after this appellant came into the dining room where she was standing and asked her if she was mad, saying to her: "Jennie, are you mad?" She replied: "No, J. D." Appellant then said, "Not a bit?" and witness replied, "No, not a bit; I never thought about being mad." Then he remarked, "Addie (meaning his wife) says the whole push of you are mad at me." Witness says he then commenced walking the floor, and said, "Just any of you get on me—all of you, every God damned one of you," and about that time Edgar Watson, deceased, came to the door and said, "J. D., nobody is mad at you, and you will have to stop that." Appellant then said, "God damn you, make me do it," and struck him with a knife. Witness states appellant had the knife in his hand when he first came into the room and began talking to her. The witness went into a detailed statement of the incidents of the transaction, which we deem unnecessary to collate. On cross-examination, in regard to some of the matters, she said when she heard the child cry she did not look around or quit her work, and in fact paid no attention to the matter. She says: "It seemed to me that the defendant was carrying the child about in some way, and he always seemed to be fond of children and would play with them. It was only a little time after I heard the child crying that defendant came into the dining room and spoke to me, as before stated. There were quite a number of people in the dining room at the time. Deceased, however, was in another room somewhere, as was defendant's wife." Tom Knight testified that he was the son-in-law of Mrs. Frankle Watson, and brother-in-law of appellant and of deceased, and lived in Collin county, and was at the home of his mother-in-law with his wife and little baby on the day mentioned (December 25th) the day of the homicide, and was there on the place at the time of the homicide; that appellant and his wife and child had also come the evening before about dark, and remained until after supper and until the Christmas tree exercises were over. On this Christmas Eve Mary Watson, daughter of Mrs. Frankie Watson, came with appellant and his wife. Mary Watson was the sister of appellant's wife and sister of the deceased and of Mrs. Knight. Just before this difficulty this witness says the first he saw of appellant was on the porch where they had a target rifle. Something was said about a target gun that appellant had previously fixed for Oscar Watson, a younger brother of deceased. Appellant remarked to Oscar, "Kid, you owe me" or "you still owe me two dollars for fixing that gun," and just laughed, and said, "I can beat you shooting this gun." They then went outside and began shooting. Witness then left them and went back into the house, remarking, "I will go back in the house—you have beat me shooting." He went to the south room of the house where he saw Edgar Watson, deceased playing a harp. Directly appellant came in, while witness was playing a harp and deceased was playing a guitar. Witness handed appellant the harp and he began playing, and played two or three pieces. Witness then left this room and went into the dining room and sat by the fire, nursing his baby who was sick or had been sick. Appellant came into the dining room and got to playing with one of the children, and was also scuffling or playing with Mrs. Ford. He also played with Mrs. Jennie Watson's little child which was crying, and afterwards he went out of the door on the east side of the room. Appellant's wife went out also, and told him to let the child alone. Appellant then came back into the dining room, and walked to where Mrs. Jennie Watson was standing at the table, and said to her, "Jennie, did I make you mad by playing with your baby?" She replied, "No, J. D.; you didn't make me mad." Appellant then said, "Well, my wife said the whole God damned push was going to get on me, and now I am inviting the whole God damned push to get on me." His wife came in at the time and said, "No, J. D.; I didn't say the whole push was going to get on you. I said you were going to make some of them mad." Deceased stepped in at that time, and while appellant was walking backward and forward in the room, deceased stepped just inside and said, "J. D., there is nobody mad at you, and all that we ask is that you be quiet and behave yourself." When this remark was made appellant started towards deceased, saying, "Make me, make me," and when he got within reach of deceased cut him with a knife. Witness went into detail in regard to the matter, and the evidence shows that deceased was cut twice with a knife, once on the side of his face, commencing...