Drake v. State

• Decision Date: 07 February 1912
• Citation: 143 S.W. 1157
• Parties: DRAKE v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 1157

DRAKE v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1912.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Will Drake was convicted of murder, and appeals. Reversed and remanded.

Scott & Brelsford and D. G. Hunt, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder. The court submitted the issues of murder in the first and second degree, manslaughter and self-defense, and appellant was convicted of murder in the second degree, and his punishment assessed at 16 years confinement in the penitentiary.

1. An exception was reserved to the action of the court in overruling appellant's first application for a continuance. In view of the disposition that will be made of the case, we do not deem it necessary to discuss this assignment, as the matter will probably not arise on another trial.

2. Appellant was charged with unlawfully killing Ross Carter. Deceased had been married to Nora Scott. They lived together only a short time, and parted; her brother taking her home. Appellant had nothing to do with this separation, in so far as this record discloses. Mrs. Carter brought suit for divorce, and appellant was a witness in her behalf. The record does not disclose his testimony; but it does disclose that deceased claimed that appellant had sworn a lie in that case, and said "he was going to make him sign a lie bill or kill him." The court, in qualifying certain bills of exception, states it was the theory of the state that appellant was desirous of marrying Miss Scott, or rather deceased's wife, from whom he was parted, and that, she having failed in her divorce suit, he killed deceased to get him out of the way, and on this theory he bases his action in admitting certain testimony. If this theory has any proper basis in the testimony, it may not have been error in admitting the testimony; but, if it has no substantial basis in the testimony, then the error would be apparent in admitting these extraneous matters, which will be hereinafter referred to.

The only testimony offered by the state as a basis for this theory, that appellant was in love with deceased's wife and desirous of marrying her, is based on the testimony of Venus Earp, who testified: "I know defendant, and I know Mrs. Nora Carter, wife of the deceased. I have seen Drake and Nora Carter associated together at church. I don't know how many times, but not more than once or twice. That was after Ross Carter and his wife separated. I never saw them associated together at any other time, at social gatherings or other places of amusement. I never did see them in a conveyance together at any time on their way to church or other places. I don't remember seeing them in a hack but once or twice. I saw them in a hack once or twice. I was at a party at Jones Stanfield's. I saw them there together that night. They talked together a little. I saw them talking together that night, but not much." On cross-examination, he testified: "These two or three times that I saw the defendant in company with Nora Carter, it is true that he was simply sitting up in the seat with other members of the family; that there was a hack load of the family going to church. He sat in the seat with her brothers, and she was in the back seat with her mother. That is what I mean when I say I saw him associated with her. Outside of that, I do not pretend to say that I ever saw him keeping her company in the sense of sparking or courting her. I do not mean to say that I ever, in my life, saw Will Drake alone in her company, or alone with her, that I know of."

This is all the testimony offered by the state to show intimacy between appellant and Mrs. Carter, and upon which it was attempted to build a theory that appellant had killed deceased that he might marry his (deceased's) wife. Mrs. Scott's family and brothers were farmers, as was the family of appellant, and lived in the same community, and attended the same church, and we do not think this testimony sufficient to raise the issue that appellant had killed deceased because of his love of the wife of deceased, or that he might marry her. And especially is this true in the light of the entire record. Defendant testified that he was engaged to be married to a Miss Martin at this time, and has been paying her attentions, and not Mrs. Carter. Mrs. Carter testified that defendant never at any time called to see her, or paid any attentions, or went with her to any entertainment. Her brother, Fred Scott, also so testified; and there was no evidence or circumstance in evidence upon which to build such theory, except the testimony of Venus Earp hereinbefore copied, and, this being insufficient to make that question an issue in the case, the court erred in permitting the witness H. R. Debenport, an attorney of Howard county, to testify that he had brought suit in behalf of appellant's former wife for divorce against him; that appellant attended the trial, but made no defense, and told the attorney he wanted her to get a divorce; and that when the decree was entered he asked the attorney if he was a free man and could marry again. Appellant was not being tried in this case for any wrong he had done his former wife, and to permit the fact that he had so conducted himself towards his former wife that she had brought suit for divorce on grounds sufficient to obtain a divorce, that he was present and did not contest the grounds, and was only solicitous to know if he was also permitted to again marry, could and would only prejudice the jury against him. The killing did not grow out of any circumstance connected with the proceedings in the district court of Howard county, and it was error to admit this testimony in evidence.

Again, it appearing that whatever ill will that existed between the two men grew out of the fact that appellant had testified in the district court of Eastland county in a suit between Mrs. Nora Carter and her husband, it was proper to admit the fact that such suit had been tried and appellant was a witness, and, when he heard that the court had denied a divorce, any remark that he may have made; but it was error to admit, over objection of defendant, the judgment in that suit, or any of the details of that trial, except in so far as appellant was connected therewith. He had been summoned as a witness, and the fact that he testified that deceased claimed he had sworn a lie, and the threats of either or both of them, were admissible; but none of the other details, nor the judgment entry in that case, were admissible.

3. When the...