Carter v. State

• Decision Date: 04 November 1914
• Docket Number: (No. 3295.)
• Citation: 170 S.W. 739
• Parties: CARTER v. STATE.
• Court: Texas Court of Criminal Appeals

170 S.W. 739

CARTER v. STATE.

(No. 3295.)

Court of Criminal Appeals of Texas.

November 4, 1914.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Bill Carter was convicted of murder and he appeals. Reversed.

S. W. Bishop and J. B. McEntire, both of Gorman, and J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 25 years' confinement in the state penitentiary.

All the evidence would show: That appellant and deceased were personal friends up to the day that the homicide took place at night. That their first open rupture took place in a pasture on the way from the house of deceased's father, E. N. Graham (where deceased lived), to the home of Carl Graham, where appellant was at that time making his home. Deceased was walking with one Bertha King, a sister of his brother Carl's wife. Appellant walked up on them in this pasture, and, as to what appellant saw and did, there is a variance in the testimony, but all the testimony goes to show that deceased there cursed appellant, calling him a s____n of a b____h, and that appellant fled, and was overtaken by deceased and his brother Jim Graham, and the witnesses vary as to what then took place, but it is made apparent that appellant, after they had separated, began to tell that deceased had attempted to rape Bertha King; that deceased and his brothers, Carl and Jim Graham, were aware of the fact, and were also made aware that appellant had gone to the home of the father of Bertha King for the purpose of informing him that deceased had attempted to rape his daughter. It is also made apparent that appellant thought deceased was going to flee the country, and he made efforts to have deceased arrested if he did so.

The state's case is that deceased had not attempted to rape Bertha; that the reports appellant was circulating were fabrications, and made from ill will, because he thought deceased had superseded him in the affections of the girl, and his acts and conduct on that occasion were brought about, not by reason of the fact that he had seen deceased attempt to rape the girl, but because of his belief that deceased had succeeded in alienating the affections of the girl from him. It is an admitted fact that the girl and appellant had theretofore been engaged. It is further shown that, when appellant was at the home of Mr. King, he secured the shotgun with which he afterwards killed deceased, claiming at that time he was going to Gorman to get the officers to assist in the arrest of deceased. The state further showed that he did not go to Gorman, but, when he got near the residence of Carl Graham (where he had been staying, and where Bertha King was also staying), he got out of the buggy and went to the home of Carl Graham and called for him. Carl Graham was not at home, having gone to Mr. King's to see what appellant had told in regard to the alleged escapade of Clyde (the deceased) and Bertha. When appellant called for Carl, Clyde came to the door, and appellant backed off, and told Clyde he did not want to see him — not to come out there. When informed that Carl was not at home, he asked for Bertha King; she at first refused to go out, but finally did go to the gate in company with her sister Nellie. Appellant asked Nellie to go in the house, as he wanted to talk with Bertha. This she refused to do, and both girls returned to the house. Those in the house tried to get appellant to come in, but he declined to do so, claiming that Clyde was armed, and he was afraid to do so. They insisted that Clyde was not armed, and Bertha showed appellant the pistol, and said she would put it away. While this conversation was going on, deceased left the house, and went to near where appellant was standing on the outside of the gate, and the state's contention is that appellant then shot Clyde at a time when his back was turned to him, and when he was making a demonstration of no kind.

Appellant testified that he and Bertha King were engaged to be married; that he walked up on deceased and Bertha in the pasture, and Bertha was on the ground and deceased on top of her; that he thought deceased was trying to rape his promised wife; that at his appearance deceased jumped up, drew a pistol, and snapped it at him. He ran when deceased pursued, cursing him. Later in the evening he saw Bertha, and she then told him that deceased had in fact tried to rape her, and was going to kill him (appellant); that he was also informed that deceased was going to leave the country that night. Having been informed that deceased was going to kill him, appellant says he attempted at several places to borrow a gun, and finally got one at Mr. King's; that he went there to inform Mr. King of the attempted rape on his daughter, and of his intention to flee the country. That he did make this report to Mr. King is shown by all the testimony. He says he notified the officers of the assault and deceased's intention to flee, and asked that they arrest deceased. In this he is corroborated. Being unable to get the officers at Gorman by telephone, he engaged a buggy to take him there, and started to Gorman, but as Mr. King had asked him to bring Bertha home, when they got even with Carl Graham's house, he asked the driver to go on and tell the officers at Gorman, he intending to get Bertha and take her to her father's; that he went to Carl Graham's house for this purpose, not knowing that Clyde Graham (the deceased) was there. It may be here said that Bertha King and the wife of Carl Graham were sisters. He went up to Carl Graham's and called for him. Clyde responded when appellant told him he did not want to see him. Learning that Carl was not at home, he asked to see Bertha, and was asked to come in the house, but he declined, fearing trouble with Clyde. Bertha declined to talk to him privately, and they kept insisting on him to come in the house. When he did not do so, deceased left the gallery and approached the gate; appellant being outside. Appellant says, when deceased got near him, deceased made a threatening gesture, and sprang towards him, when he fired, shooting twice. Deceased fell, and a witness for appellant says, when he went to the place where deceased fell, deceased's knife was lying there on the ground open. The state denied there was a knife picked up off the ground.

This is a sufficient statement to render intelligible the rulings of the court. After Bertha King had testified on the trial as hereinbefore stated, on motion for a new trial she attaches an affidavit stating that her testimony was false in a number of particulars, and she was induced to give the false testimony by Carl Graham, Mark Mahan, and others.

Appellant testified on the trial that on that day he had loaned his pistol to Bertha King, and she had carried it with her when she left Carl Graham's house. On the trial of the case she testified this was false, and said she did not at this time, nor at any other time, have appellant's pistol. On the motion for new trial she says her testimony was false, and that she did have appellant's pistol, and he told the truth about the matter. Appellant testified that, when he came up on Bertha King and deceased in the pasture, deceased had her down and was attempting to ravish her, or so it appeared to him. On the trial Bertha King testified that this testimony was untrue, and that deceased had not tried to ravish her. On the motion for new trial she swears that her testimony on the trial was false, and...