Davis v. State

• Citation: 257 S.W. 1099
• Decision Date: 23 January 1924
• Docket Number: (No. 8083.)
• Parties: DAVIS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 1099

257 S.W. 1099

DAVIS v. STATE.

(No. 8083.)

Court of Criminal Appeals of Texas.

January 23, 1924.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Carter Davis was convicted of an assault to murder, and he appeals. Reversed and remanded.

Kirby, King & Overshiner, of Abilene, for appellant.

E. L. Routh, Dist. Atty., of Breckenridge, Tom Garrard, State's Atty., of Midland, and Grover C. Morris, Asst. State's Atty., of Devine, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Stephens county of an assault to murder, and his punishment fixed at 10 years in the penitentiary.

Appellant and his wife had separated, and she was living with her mother and sisters in a house a few feet from one occupied by another sister of hers and the husband of said sister. Appellant went to the place where his wife was living, and engaged her in conversation relative to returning to him. Upon her refusal he shot her and almost immediately following shot her sister, the deceased in this case, and then shot another sister. He then followed those of the women who fled to the adjoining house, and there shot that one of his wife's sisters who lived in the neighboring house. He was tried and convicted in this case for the shooting of Lizzie Pool, one of his wife's sisters, who was with her at the time the shooting first began.

Appellant's wife was offered as a witness against him upon this trial. He objected to her testimony upon the ground that being his wife her testimony was inadmissible under article 795 of our Code of Criminal Procedure. This objection was overruled upon the proposition that subsequent to the shooting in question, and prior to the instant trial, the wife had been granted a divorce from appellant. Appellant then interposed the further objection, or made known to the court the fact, that prior to the call of this case for trial he had filed a petition for a writ of error to the Court of Civil Appeals of the district, in the divorce case, and had supported same by an affidavit in forma pauperis which had been made by him before the county judge in the county of his residence and which seems to have been in all things in conformity with the law relative to the form of such affidavit. The learned trial judge overruled the objection, and his action is complained of in bill of exceptions No. 5, to which appears the following qualification:

"The divorce was granted January 2, 1923. There was no motion for a new trial nor appeal taken, the term of court had adjourned when Cubie Davis was placed on the witness stand by the state in this case. Defendant's counsel then objected for the reason that defendant had filed application for writ of error and had filed his pauper's affidavit in lieu of bond. No proof was offered before this court of defendant's inability to give bond nor was he permitted under order of this court to prosecute said writ without bond. Copy of said affidavit of inability to give bond showing filing is hereto attached and made a part of this bill."

The affidavit being in proper form, as stated above, and being sworn to before the county judge of the county of residence, and there being nothing in this record by which we are informed there had been any contest of said affidavit, we are unable to appreciate the force of the statements of the learned trial judge in...