Combs v. State

• Decision Date: 19 February 1908
• Citation: 108 S.W. 649
• Parties: COMBS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 649

108 S.W. 649

COMBS v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1908.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

George Combs was convicted of murder, and appeals. Reversed and remanded.

Hood & Shadle, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was charged in the district court of Parker county with the offense of murder of his wife, Claudie Combs. He was convicted at the September term of said court, 1907, of murder in the second degree, and his punishment assessed at 30 years' confinement in the penitentiary.

There are several interesting questions raised on the appeal, the more important of which we will now consider. The facts show that appellant and his deceased wife were quite young people; that they had been married something like two years; that there had been one or two separations between them, but they were living together at the date of her death; and no direct evidence of any quarrel or bad feeling is shown to have existed at that time, except and unless it can be found in the fact of some declarations by appellant to his neighbors in respect to getting a divorce. On the day of the homicide they had been picking cotton in a field close to where they lived, and had a wagon about half full of cotton when they concluded to remove the cotton from the wagon and to go to town in it. After having removed the cotton, appellant's wife started home. He (appellant) had in the field at the time a pistol. This pistol he carried to his father's house the night before, having gone to his father's house after night and carried the pistol, as he claims, for protection; that he carried the pistol to the field the next morning, and states, in his statement hereafter referred to, that he thought he had removed the cartridge from it. While en route home, and while in the field, a shot was fired, which struck his deceased wife in the back, as a result of which, a few days after this, she died. There were some two or three neighbors, not far apart, who, in view of the cries of appellant and his wife, came to where they were. The witness Ed Wells says: "I started to him (meaning appellant) just as quick as I heard him. He may have holloed three or four times before I got my sack off, and I started right in the direction of the holloing. I climbed through a barbwire fence into the woods, and started in the direction I heard the sound. I came out of the timber into a glade of prairie and stopped, and just then I heard him say something to her, and I looked over and saw them. I asked him what was the matter. `Oh,' he says, `I have shot Claudie.' I said, `How in the world did you do it?' And he said, `I was wringing the pistol,' or `turning the pistol around my head, and it went off and shot her accidentally.' He said he was whirling the pistol around his head, snapping it, and it went off and shot her accidentally." The witness Cary testified that appellant said to him, when he reached the scene of the shooting, in response to an inquiry as to how he had shot his wife, that "I was just throwing the pistol around my head, snapping it, and it went off and shot her accidentally." The appellant had made before the assistant county attorney of Parker county a written statement, which was introduced by the state, without objections, in which appellant said: "When my wife and I started home this morning, I forgot the pistol, and went back and got it, and stuck it in my hip pocket. We came back to my cotton patch and unloaded a wagon of cotton, so we could use the wagon to go to town. While we were unloading the wagon, I laid the pistol down on a log, but took the load out of it first. After I took the load out, I revolved the cylinder several times; don't know why I did, unless it was to see if it needed cleaning. The reason I took the load out was because I was afraid it would fall off and explode. I must have put the load in before I put the pistol down on the log; for I know I did not put it in when I picked it up. I don't remember of putting the load back, and did not know that it was in there when I picked it up. My wife had started on ahead of me, and I was trotting along behind her, trying to catch up with her, swinging the pistol around in my hand and snapping it. It went off and struck my wife." Proof was also made by Dr. Fritz, who was called to see Mrs. Combs, that he asked her how it happened, and that she said, in reply to such question, that they were in a wagon unloading some cotton, and when they got out she started to the house to get ready, and her husband started to get the mules, and was coming after her to go to town, and the pistol went off and shot her; that George (meaning appellant) had not intended to shoot her; that the shooting was accidental.

In this state of the proof, appellant most strenuously contends that the court erred in not giving a charge on negligent homicide in the first and second degree, and in support of this contention refers us to the case of Bradshaw v. State (Tex. Cr. App.) 50 S. W. 359. The Bradshaw Case is, in its facts, very much like the case at bar, and is authority for the proposition that if the court had submitted the issue of negligent homicide in the first degree, and a conviction had resulted, such submission and conviction would have been justified under the law by the facts of this case. We do not believe, however, under the authorities, that it was error in this case, in view of the charge given by the court, to fail to submit the doctrine of negligent homicide. The court gave a charge in which he instructed the jury very clearly that, if the shooting was an accident, the defendant was entitled to an acquittal. In ...