Coulter v. State

• Citation: 162 S.W. 885
• Parties: COULTER v. STATE.
• Decision Date: 15 October 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

162 S.W. 885

COULTER v. STATE.

Court of Criminal Appeals of Texas.

October 15, 1913.

Rehearing Denied January 21, 1914.

Appeal from District Court, San Augustine County; A. E. Davis, Judge.

Raymond Coulter was convicted of murder in the second degree, and he appeals. Affirmed.

Wm. MacDonald, of San Augustine, Geo. S. King, of Houston, and D. M. Short & Sons, of Center, for appellant. Blount & Strong, of Nacogdoches, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at six years' confinement in the penitentiary.

The evidence in this case shows that appellant's father, Henson Coulter, and deceased, A. C. Lynch, were brothers-in-law; that some time prior to the homicide Lynch had leased a portion of the land of Henson Coulter and erected a mill thereon, the point where the mill was situate being outside of the inclosed land; that inside of the inclosed land a tank or pond was dug, and from this tank the mill secured its water by a pipe running under the fence. Henson Coulter and deceased were friends at this time, and owned a team jointly, which was driven by appellant. A month or more before the fatal difficulty, Henson Coulter and a man employed at the mill by Lynch named Ferguson had a difficulty, and Ferguson ceased to work at the mill. Shortly thereafter another hand employed by Lynch quit, and Lynch re-employed Ferguson. So far as this record discloses, this is when the friendly relations were first severed. According to the state's testimony, after Lynch had reemployed Ferguson, appellant made several threats about what he was going to do (according to the testimony of Rufe Fitz), saying, among other things, "I am going to kill Uncle Arch (deceased) the first chance I get." When Lynch re-employed Ferguson, appellant quit working for him. About a week before the homicide, and after Ferguson had been re-employed by Lynch, Henson Coulter nailed up a gate in the fence near the mill of deceased; this being the only entrance into the pasture on that line of fence. Mr. Coulter assigns as a reason for nailing up the gate that he did so to prevent stock from getting out. A few days after the father of this appellant had nailed up this gate, Lynch (deceased) made another gate in the fence near the mill. On the day of the difficulty Henson Coulter was informed that Lynch had put in this gate, and went down and nailed it up also. He returned by the mill and informed deceased that he had nailed the gate up; he having in his hand at this time the iron pin he had used in nailing up the gate. When he informed Lynch that he had nailed the gate up, Lynch picked up a hand axe and advanced towards Henson Coulter and caught him by the shoulder. Words ensued, as regards which there are different versions, but it may be said that deceased cursed Henson Coulter, and informed him that he would again open the gate, and he did do so. The state's witnesses say that Henson Coulter remarked as he left that he would be back down there directly.

After Henson Coulter left, John Green came to the mill to get some oil; the pump being in an outhouse near Henson Coulter's residence. John McBride and deceased went up there to get the pump, and while McBride was getting the pump out of the house two or three shots were fired by Raymond Coulter, appellant, as he says, at some guineas, the state's contention being that the shots were fired at deceased, and that the third shot knocked up the dust near deceased's feet. There is no contention that at the time these shots were fired deceased had said or done anything; but it is shown that, when the shots were fired in the lot, deceased began to curse, and called on those in the lot to come out and he would fight it out with them, using very opprobrious epithets.

The state's testimony would show that when two shots were fired in the lot deceased called on them to come out and fight it out; that a third shot was fired, knocking the dirt up near deceased's feet; and that it was at this time he drew his pistol, when two more shots were fired, and he fell; that deceased fired no shot.

Appellant contends that the first shots were fired at some guineas, and he did not know that Lynch was near until Lynch began to curse; that he then saw Lynch, who had a pistol in his hand, and who immediately fired in the direction of those in the lot. Appellant says he then jumped behind a tree, and he and Lynch fired almost simultaneously, when Lynch fell.

Appellant and his witnesses contend they were on the way to the field to go to work, and appellant carried the pistol to kill some dogs. The state's contention is that, when Henson Coulter returned home from the gin, he and his two sons, Raymond and Henry Coulter, and two others, had started back to the mill armed, and fired when they saw Lynch, continuing to shoot until they killed him. Appellant's theory is that he knew nothing of the difficulty at the gin; that he had started to work, fired innocently at some guineas, not knowing that Lynch was near; that when he did so Lynch cursed, drew a pistol, and fired at them; that he then drew his pistol, and he and Lynch both fired.

In one of appellant's bills of exception it is contended that the court erred in permitting witness to testify that after the altercation at the gin, when Henson Coulter left he said "he would be back down there directly." The record discloses that, when the state offered in testimony this difficulty at the gin, it was excluded upon objection of the defendant. On cross-examination of the witness McBride, the defendant had him testify to all that was said and done by deceased Lynch at that time, when upon redirect examination the state was permitted to prove what Henson Coulter said and did. Article 811 of the Code of Criminal Procedure, provides, when part of an act or declaration is given in evidence by one party, the whole on the same subject may be inquired into by the other party. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. When appellant brought out the fact that his father had a difficulty at the mill with deceased, and the acts, words, and conduct of deceased at that time, then the whole conversation became admissible.

But we think the testimony was admissible as shedding light on the subsequent transaction. If appellant's father had not gone to the mill and nailed up the gate and went to the mill and informed deceased of that fact, when the first altercation took place, there certainly would have been no other difficulty that day. The second difficulty was but an outgrowth of the first, in whatever light we may view the matter. According to the state's theory, this was the reason that appellant and his brother armed themselves, and in company with his father and others went in the direction of the mill to renew the difficulty; according to the defendant's theory this was the reason, when appellant, as he says, innocently fired at the guineas, why deceased began to curse and abuse them and fired his pistol in the direction of him and his father. So, according to either theory of the case, this prior difficulty would shed light on the subsequent transaction. And especially would this be true when appellant first injected it into the case.

Henson Coulter, Henry Coulter, and appellant were all indicted charged with this offense. The record shows that Henson Coulter (the father) had been tried and acquitted, and Henry Coulter had been tried and convicted of manslaughter prior to the trial of appellant. Upon this trial the state was permitted to prove that, while the shooting was taking place or just prior thereto, a witness says he saw Henson Coulter motioning with his hands towards the place where deceased was situate. The fact that Henson Coulter had been tried and acquitted would not render this testimony inadmissible. Although he had been acquitted, it would have been permissible for the state to show on the trial of this defendant that a conspiracy existed, if it could do so. The defendant's theory was that deceased was angry because Henson Coulter had nailed up the gate, and, because of the prior difficulty, came up towards their home and shot at them without a just provocation by reason of these facts, while the state's theory was that a conspiracy existed between appellant, his father, and brother Henry to take the life of deceased, because of deceased's act at the gin. Upon such a state of case, the acts, words, and conduct of each of the parties are admissible in evidence, and the court did not err in so holding.

During the trial, Elma Holt was permitted to testify: "The conversation came up about a hand Mr. Lynch had employed by the name of ...