Chant v. State

• Decision Date: 08 April 1914
• Docket Number: (No. 2903.)
• Citation: 166 S.W. 513
• Parties: CHANT v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 513

CHANT v. STATE.

(No. 2903.)

Court of Criminal Appeals of Texas.

April 8, 1914.

Rehearing Denied May 6, 1914.

Appeal from District Court, Edwards County; R. H. Burney, Judge.

Will Chant was convicted of murder in the second degree, and he appeals. Affirmed.

W. A. Morriss, of San Antonio, and Cornell & Wardlaw, of Sonora, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with the murder of Mary Connell, at the regular June term of the district court of Edwards county, 1913. Thereafter, on July 13th, Hon. R. H. Burney, judge of said court, called a special term of the district court of Edwards county to convene on August 11, 1913, for the trial and disposition of this and four other cases named in the order convening court, giving notice, etc., complying in every detail with the law authorizing special terms of the district courts to be held. Chapter 4, tit. 34, Rev. St. 1911.

Appellant contends that the district court had no authority to call a special term of the district court, and that the arraignment and trial of him at this special term was unauthorized and void. This question has been passed on so often adversely to appellant's contention we deem it unnecessary to discuss it again. Ex parte Young, 49 Tex. Cr. R. 536, 95 S. W. 98; Ex parte Boyd, 50 Tex. Cr. R. 309, 96 S. W. 1079; McIntosh v. State, 56 Tex. Cr. R. 134, 120 S. W. 455; Boyd v. Texas, 209 U. S. 539, 28 Sup. Ct. 570, 52 L. Ed. 917.

Appellant, after he had shot and killed Mrs. Connell, intentionally, as contended by the state, or accidentally, as contended by him, left the place where the killing occurred, and later in the night went to the home of Frank Kelly and called Mr. Miller, justice of the peace, over the phone, and talked to him, and he desired to prove by witnesses what he then said to the justice of the peace about the homicide, which testimony was objected to by the state on the ground that it was self-serving, and not res gestæ of the transaction. The court did not err in sustaining the objection, for it would have been but a self-serving declaration, and took place so long after the difficulty and under such circumstances as not to come within the rule governing res gestæ statements; in fact, appellant does not contend that it does, and in the bill nor in the brief does he state upon what grounds he believed the testimony should be admitted, he merely stating that he excepted to the ruling of the court in sustaining the objection of the state. For the same reasons the statement made to Frank Kelly at the same time and place would not be admissible. However, in the record it appears that later the court did permit Mr. Kelly to testify what appellant told him on that occasion.

The only other two bills of exception in the record relate to the refusal of the court, on hearing of the motion for a new trial, to permit jurors Clark and Crausbay to testify that they, in fact, believed appellant's theory of the case, and that they agreed and consented to the verdict rendered, and yielded their judgment in an effort to compromise and agree with the remainder of the jury. A juror is not permitted thus to impeach his verdict after it has been rendered and accepted by the court, and the jury discharged.

As appellant was convicted of murder upon implied malice, or, as formerly defined, murder in the second degree, we will not notice those portions of the motion for new trial and objections to the charge relating solely to those parts of the charge defining and submitting murder upon express malice, or murder in the first degree.

The evidence in this case did not call for a charge on manslaughter. The facts would show that Will Connell, a son of deceased, eloped with and married Ruby Wilson, a daughter of Mrs. Mollie Wilson. After the marriage Mrs. Wilson, in some way, secured possession of her daughter, and carried her to San Antonio. Will Connell's father went to San Antonio, and Ruby returned with him, and she and Will Connell resumed their relations as husband and wife. When the district court of Edwards county convened some weeks later, Mrs. Wilson accompanied by her brother, appellant, Will Chant, went to the county seat and sought the district attorney in an effort to have Will Connell indicted for swearing falsely to obtain marriage license. She was informed by the district attorney that the grand jury would not indict Will Connell, and that, if they did, under the evidence, so far as he knew, he could not obtain a conviction, and he says he advised her to let the matter drop. She asked if the marriage could not be annulled, and he declined to advise her, and referred her to other attorneys. The only difference in the testimony for the state and defendant up to this point is that the defendant claims that the district attorney told Mrs. Wilson the marriage could be annulled. But, be this as it may, no proceedings were instituted to annul the marriage, and no other attorney visited by Mrs. Wilson that day, but she and her brother, appellant, left the county seat to return to their home. After getting to the house of appellant, he got out, and Mrs. Wilson went over to her home. Some time later appellant leaves his home, goes by the residence of his half-brother, Luther Roberts, and borrows a Winchester rifle and a box of cartridges, and then goes to the home of Mrs. Wilson. The state's testimony shows: That later in the night, after the Connell family had retired and was asleep, Mrs. Wilson appeared in the room in which Will Connell and his wife, Ruby, were sleeping, with a shotgun loaded with buckshot. The noise she made awoke Will Connell, who sprang out of the bed and grabbed the gun by its barrels, and he and Mrs. Wilson began a scuffle for the possession of the gun, when Mrs. Connell called: "Will, come here." Mrs. Mary Connell, and her daughter, Allie, had been awakened by this time, and, as appellant came running to the door, he was met by Mrs. Mary Connell, Mrs. Ruby Connell, and Miss Allie Connell, who would not let let him enter the house, and told him that Will Connell was not going to hurt Mollie. That appellant, Will Chant, then caught hold of Mrs. Mary Connell, jerked her out of the door, and off the gallery, and then shot her. We do not deem it necessary to go into further details.

Appellant admits that he went to the home of Mrs. Wilson that night, and went by Luther Roberts and got his gun; however, he says that Mrs. Wilson was moving to his home, and he went there to get the remainder of the chickens, and, as they were wild, he got the gun and carried it to kill the chickens, as some of them were wild; that he knew nothing of Mrs. Wilson's intention to go to the Connell home that night until he arrived at her home, when he tried to dissuade her from going that night, but she insisted on going, and he thought it his duty to go with her; that on the way to the Connell home he again tried to get her to wait until the next day, when he would go with her in an effort to get Ruby to return to her mother, but Mrs. Wilson would not consent, saying if she could get her hands on Ruby she would come. They went to the Connell house, and he stopped a piece from the house, his sister going on in the house. He then heard her call, "Will, O Will, come here; they are killing me;" and he ran to the house,...