Davis v. State

• Citation: 77 S.W. 451
• Parties: DAVIS v. STATE.
• Decision Date: 09 December 1903
• Court: Texas Court of Criminal Appeals

77 S.W. 451

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1903.

Appeal from District Court, Jefferson County; A. T. Watts, Judge.

John Davis was convicted of murder in the second degree, and appeals. Reversed.

O'Brien, John & O'Brien, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

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

Upon the trial the state proved by Sibbie Robertson the following: "I am the daughter of Ed Gilder, deceased, and was prior to and at the time of the killing of Ed Gilder the wife of defendant, John Davis, but have since the death of Ed Gilder married a man by the name of Robertson. I was at the house of Ed Gilder at the time he was killed, down at Aunt Emily Ben's, and did not see the shooting. It was at Aunt Emily Ben's, on the little gallery of the little house used by her for the purpose of amusement and giving parties. He was lying on his side, and his entrails were out. He had his good mind. He was talking. Q. Did he say anything with reference to his condition? A. He said: `Sweetheart, you begged me to stay at home, but I refused to do so. I am shot. John Davis did it. He slipped up and shot me. He did it with that old gun he had.' He said it snapped twice before it fired. He said he was a dead man. He was talking to my mother, Lizzie Gilder, at the time. Just before defendant went to Aunt Emily Ben's to live, he and I, as husband and wife, were living in a little house of ours. After our marriage we had lived about three months in the house with deceased, Ed Gilder, and his wife. It was about three weeks before the killing of Ed Gilder that John Davis had gone to Aunt Emily Ben's to live. Q. At the time you left your father's house, as the wife of John Davis, what was the conduct of John Davis to your father? A. One night when father was sick, defendant told me to hang his overalls by the fire to dry. I did so, and about 2 o'clock in the night he wanted me to get up and go after his overalls. I told him I would not, because it was not time for him to go to work. He said: `That is what I say about a lot of damn fools. I have a good notion to get my gun and kill the whole bunch.' Then papa, from the other room, said: `Davis, don't make so much noise. I am sick as I can be.' Defendant kept fussing, and told deceased, if he did not like it, he could help himself. Defendant attempted to get his gun and get in the room. This is all he did." At the time this testimony was introduced, appellant reserved no exception, nor was any motion made after its introduction to exclude the same from the consideration of the jury, nor was any bill of exceptions reserved in any way to its introduction. It is urged for the first time in this court as a reason for the reversal of this case. Article 774, Code Cr. Proc. 1895, provides: "Neither husband nor wife shall in any case testify as to communications made by one to the other while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation subsisted, except in a case where one or the other is prosecuted for an offense, and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate...