Brown v. State

• Decision Date: 02 June 1909
• Citation: 120 S.W. 444
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 444

BROWN v. STATE.

Court of Criminal Appeals of Texas.

June 2, 1909.

Appeal from District Court, Harrison County; W. C. Buford, Judge.

William Brown was convicted of murder, and appeals. Reversed and remanded.

Y. D. Harrison and R. A. Sexton, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, C. J.

This conviction was for murder in the first degree, with life imprisonment in the penitentiary.

The state relies upon facts showing, with more or less cogency, that appellant shot and killed his wife. They lived in Panola county, and had gone to the city of Marshall, in Harrison county, accompanied by a girl, named Viola Thomas. Appellant took a bale of cotton, which he marketed in Marshall, with the proceeds of which he and his wife made quite a lot of purchases. They gave Viola Thomas some money, also, with which she made purchases. On their return trip, while yet in the city of Marshall, the killing occurred. Viola Thomas' testimony, with other facts and circumstances, was relied upon by the state to show that appellant did the killing. This he denied. The deceased was shot in the left eye; the bullet ranging backward, striking the skull in the back of the head. There are some peculiar circumstances that tend to throw confusion about the immediate facts of the death of the deceased. There was but one shot fired. This, it is claimed, was from a pistol which appellant had gotten from his satchel. Viola Thomas states that just as he got the pistol from the satchel she heard it click, jumped out of the wagon, and ran back towards town. The facts show that appellant's face was powder-burned, and that the pistol was found something like 35 steps in the direction of town from where the tragedy was enacted. It was in this direction that Viola Thomas went when she left the wagon. It is clearly shown that appellant did not go in that direction; that he remained at the wagon. The evidence also discloses that there had been differences between appellant and his wife. On one occasion he shot at her a couple of times, and on two or three occasions threatened her life, and had minor troubles such as appellant says come up in the ordinary course of life between husband and wife. Between these occurrences or difficulties they seemed to be reconciled, and lived comfortably, if not happily, together. Appellant, among other things, immediately after the shooting, stated that Viola Thomas shot his wife, and he testified to facts indicating that somebody else shot at him, and in this manner shot his wife, and thus sought to account for the powder burns on his face. He was quarreling with his wife at the time of the difficulty, according to the testimony of Viola Thomas, because he had seen her talking with a man upon the street, and stated that her conduct would cause him to have to kill some damn son of a bitch. The facts are rather voluminous, and this may be a sufficient statement to bring in review the questions suggested for reversal.

1. Bill of exceptions No. 1 was reserved to the failure of the court to quash the copy of the indictment served upon appellant. Bill of exceptions No. 2 was reserved to the refusal of the court to continue the case on the application of appellant. There are some bills of exceptions reserved to the remarks of the district attorney. We deem it unnecessary to review these matters, as they will not arise upon another trial.

2. Bill of exceptions No. 3 recites that the state was permitted to prove by Viola Thomas that defendant quarreled with his wife in the town of Marshall and said to her: "You are going to have me kill some of these God damn sons of bitches about you." To this appellant urged several objections. As qualified by the court, this testimony was admissible. The quarrel began as they were leaving the town, and continued until the killing occurred, which was within three-quarters of a mile of the point from which they started.

3. The fourth bill of exception recites that, while appellant, his wife, and the witness Viola Thomas were in the wagon on the square in the city of Marshall, a white man passed and appellant said to him, "Breach this gun up," and the white man did not stop, and appellant said to his wife, "The God damn son of a bitch is scared to stop." Objection was urged to this. Upon another trial we suggest that this testimony be excluded. It is not shown to have had any connection with his wife in any way. The bill is very indefinite; but as the matter is presented we are of opinion it should not have been permitted to go to the jury.

4. Bill of exceptions No. 5 recites that the witness Joe Marcellus was permitted to...