Bell v. State

• Decision Date: 18 June 1919
• Docket Number: (No. 5421.)
• Citation: 213 S.W. 647
• Parties: BELL v. STATE.
• Court: Texas Court of Criminal Appeals

213 S.W. 647

BELL v. STATE.

(No. 5421.)

Court of Criminal Appeals of Texas.

June 18, 1919.

Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.

Earl Bell was convicted of murder, and he appeals. Reversed and remanded.

R. H. Jones, of De Kalb, and Mahaffey, Keeney & Dalby, of Texarkana, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted, in the criminal district court of Bowie county, Tex., of the murder of George Petties, and his punishment fixed at ten years in the penitentiary.

Appellant made a second application for a continuance because of the absence of one Neeley and King. We do not think the diligence as to the witness Neeley was sufficient; King had been subpœnaed and was in attendance at the former setting of the case, and his absence was not known to appellant, as disclosed by said application, till the day of the trial. Being a second application, it must appear that his testimony could not be procured from any other source, known to the appellant. It was set up in the application that by said King it would be shown that a few days prior to the killing he met deceased carrying a gun, and asked him what he was going to do with it, and deceased told him he was going to kill a negro with it; that King asked deceased what negro, and he said, "Earl Bell," and further said he was going to kill him because of Bell's wife. Said application further showed that King would testify that he communicated these facts to the appellant two days before the homicide. We have searched the record carefully to see if this evidence, either in detail or in substance, was given by any other witness, but failed to find any evidence thereof. The materiality of this testimony further appears from the fact that appellant and one other eyewitness to the homicide swear that, just before the appellant shot deceased, deceased threw his hand back to his hip as though he was going for his gun. Wilson v. State, 18 Tex. App. 576; Alexander v. State, 25 Tex. App. 260, 7 S. W. 867, 8 Am. St. Rep. 438; Reeves v. State, 34 Tex. Cr. R. 483, 31 S. W. 382. The continuance should have been granted, or the court should have granted a new trial, upon the discovery of the materiality of said testimony and the inability to procure same from any other source.

Appellant's wife was introduced as a witness in his behalf to show insulting conduct on the part of the deceased toward her. On direct examination she did not testify anything regarding any trouble between herself and her husband or any separation over any woman. This being true, it was error to permit the state to examine her as to this or any other matter not connected with or germane to her testimony in chief. This applies also to the question asked her by the state, and complained of in appellant's bill of exception, as to her statement to her husband that she dreamed that deceased had said certain things about her husband and Cora Waller.

The matters complained of in appellant's bills of exceptions Nos. 6, 8, 11, 12, and 13 do not constitute reversible error. When the wife of one accused of crime voluntarily takes the stand in his behalf, she may be impeached by proof of contradictory statements made to third parties just as any other witness. Taylor v. State, 74 Tex. Cr. R. 3, 167 S. W. 56; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 100; Link v. State, 73 Tex. Cr. R. 82, 164 S. W. 987.

No error was committed in allowing witness Swink to testify that on the night before the killing he said to appellant that he understood appellant had purchased a gun to kill the witness and deceased with. Said witness, ...