Bradford v. State

• Decision Date: 23 November 1932
• Docket Number: No. 15393.,15393.
• Citation: 54 S.W.2d 516
• Parties: BRADFORD v. STATE.
• Court: Texas Court of Criminal Appeals

54 S.W.2d 516

BRADFORD v. STATE.

No. 15393.

Court of Criminal Appeals of Texas.

November 23, 1932.

Commissioners' Decision.

Appeal from District Court, Austin County; M. C. Jeffrey, Judge.

W. R. Bradford was convicted of murder, and he appeals.

Reversed and remanded.

P. Z. Sullivan, of Bellville, for appellant.

Fred L. Blundell, Dist. Atty., of Lockhart, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

The offense, murder; the punishment, death.

The killing is alleged to have taken place on or about the 20th day of June, 1931. The deceased was the appellant's sister. She was about 56 years of age and for some time had been in very feeble health. A short time before the homicide, she had been in the hospital for some time. The state's testimony showed that she was suffering from a disease which almost completely incapacitated her and required constant nursing and attendance. The deceased and her mother, who was also the mother of appellant, resided in the house together and the mother was very old and was very hard of hearing. For a long period of years prior to the killing, appellant had not visited or seen his sister. He came to deceased's house in the early part of the year 1931, and later on the wife of the appellant came also and they resided there in the house. It seems that the mother drew a pension and had saved up about $1,100, and about the time the deceased was to be removed from the sanitarium back home, the question arose as to the mother paying the hospital expenses thereof. It seems she consulted with appellant before it was done and he agreed to her paying $500 out of her money on the hospital expenses. The deceased was shot in the back of the head from the discharge of a shotgun, and her body was found lying by the side of the bed. There was also evidence to show that there had been a scuffle before the killing.

It was appellant's defense that the shooting was an accident, and the effect of his testimony was that the deceased had become angry at the appellant and his wife and claimed that they were using some of her quilts, and she remonstrated with them and told them not to use them any more. That appellant agreed that he would not use them any more. He further testified that deceased called the appellant to her bed, and when he came there the deceased had a shotgun lying on the bed with her and told him that she was going to kill him, and he immediately grabbed the gun to take it away from her, and in the scuffle which resulted and in his endeavor to get hold of the gun and in dragging it out from the foot of the bed, it was accidentally discharged. That immediately afterwards he fled and his mind was in such a state or condition that he knew nothing about his acts or conduct thereafter.

Rebuttal testimony on the part of the state tended to show that deceased was so sick that that she was physically unable to handle a gun of that size.

By bill of exception complaint is made as to the receipt in evidence of the testimony of the witness Dora Kaechele, who testified as to hearing the wife of the appellant over the telephone make the statement to the effect that the appellant had killed the deceased. The bill of exception presented by appellant's counsel was refused and the court prepared his bill of exception.

Another bill of exception went to the receipt in evidence of testimony of the witness Hoffman Reese, who arrived, according to the state's contention, soon after the killing and heard the appellant's wife make some statement with reference to appellant's connection therewith. This bill of exception on the part of appellant's counsel was refused and the trial court filed his bill, which appears in the record as bill of exception No. 10A. By this bill of exception, we find that the trial court certified to the fact that the witness was permitted to testify to what the wife told him as part of the res gestæ. It appears from the facts set out in said bill of exception that a state's witness, Ernest Blum, testified that he knew defendant's wife and that the appellant's wife did not come with the appellant at the time he came to his sister's home but came some time later; that he had been to the home of deceased while she was in bed after she returned from the hospital and he saw the appellant's wife waiting on the deceased; and that she was then present at court. He further testified that they went to the home of deceased immediately after the killing and the appellant's wife was there. It is further shown by said bill of exception that the witness Dora Kaechele, a witness for the state, testified, before the question and answer complained of was asked and answered by the witness Reese, to the effect that she lived at Kinney and she lived there on June 20, 1931, and at that time was a telephone operator; that she knew the deceased during her lifetime and knew about where her place was; that she had a telephone in her house connected with her exchange and she had talked to and heard the voice of appellant's wife over the telephone before the killing of deceased; that at the time of the killing of the deceased, she received a telephone call from the home of the deceased; and that call was from Mrs. Bradford, the wife of the defendant, and at the time she received the telephone call from appellant's wife she was very nervous and talked like she was crying and was excited. Appellant's wife wanted an officer and a doctor and she called several times, one call right after the other; that she called three or four times within a period of 10 or 15 minutes, and each time she was asking for help and she wanted the sheriff and a doctor; that at each of the times she called she was in the same condition of excitement and nervousness and was crying. That she communicated with some one at Brenham and she wanted Mr. Hoffman Reese at Brenham, and a little bit later the witness had a call for an undertaker at Brenham; that it was about 15 minutes from the time appellant's wife talked to Brenham until she received the call from the Dodd home for the undertaker.

The witness Dr. W. F. Hasskarl testified, before the question and answer complained of in the bill was put and answered by the witness Reese, to the effect that he learned of the killing from Hoffman Reese, who informed him of the killing and asked him to go with him and he accompanied him to the home of the deceased at his request; that they traveled by automobile at the rate of about 55 miles per hour, and it was about 10 miles from Brenham to the deceased's house; that the deceased's house was about 2 miles from the paved road and they started immediately after being notified; that it was perhaps 20 minutes from the time they learned of the killing until they arrived at the house where the body of the deceased was found. When they drove up, the wife of the appellant came out of the house and met them between the house and gate, and she was very excited and was wringing her hands, and from his investigation of the body and conditions he saw there he would say that the body had been shot and killed about half an hour before they arrived. On cross-examination, he testified that he hardly thought that the deceased could have been dead an hour when they arrived and he based his opinion on the condition of the tissue and the blood.

The bill further shows that the sheriff, Hoffman Reese, testified before the question and answer complained was asked and answered by him to the effect that at the time he learned of the death of Mrs. Dodd he was at his office in Brenham and it was about 10 miles from Brenham to Mrs. Dodd's and she lived 2¼ miles off the pavement. It was a total distance of about 10 miles to her house and there was a concrete highway within about 2¼ miles of her place, and he received the information shortly after the shooting and was requested to bring a doctor with him; that after he received the message he phoned Dr. Hasskarl and picked him up on his way out;...