Edmondson v. State

• Decision Date: 09 March 1927
• Docket Number: (No. 10586.)
• Citation: 292 S.W. 231
• Parties: EDMONDSON v. STATE.
• Court: Texas Court of Criminal Appeals

292 S.W. 231

EDMONDSON v. STATE.

(No. 10586.)

Court of Criminal Appeals of Texas.

March 9, 1927.

Appeal from District Court, San Saba County; J. H. McLean, Judge.

Will Edmondson was convicted of murder, and he appeals. Reversed and remanded.

J. H. Baker, of San Saba, and J. F. Taulbee, of Georgetown, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for life.

Fred Bollinger was an unmarried man something over 50 years of age. He resided upon a farm in a small house about three-quarters of a mile from the home of the appellant, who also lived on a farm. On the morning of November 11th, Bollinger was discovered lying on his bed, suffering from a gunshot wound in his breast. Near the bed was a 38-caliber pistol from which two shots had been recently fired. There was evidence that the wound upon Bollinger was inflicted by a bullett fired from a 38-caliber pistol. There was also evidence that there was a bullet hole through the roof of the dwelling. The evidence was conflicting touching the powder burns upon the shirt and undershirt which were worn by Bollinger.

Shaw, the person who first arrived, testified that Bollinger raised the cover to reveal the wound; that there were no powder burns or holes through the bed cover; that Bollinger said there was no use to send for a doctor. After the arrival of Shaw, the witness Jones arrived, and later several others, including the doctor who examined the wound. Bollinger gave Jones some money and directed that it be given to relatives. He stated in the presence of Shaw, Jones, and several other witnesses that he did not know who shot him; that he was shot while he was asleep. The bullet entered slightly below the left nipple and ranged outward and upward on the same side of the body and located under the skin below the left shoulder-blade. Bollinger was removed to a sanitarium in Brownwood, where he died on the 17th day of December.

The appellant was interested in having the commissioners' court authorize the creation of a road, a part of which would pass through the land of the deceased. The deceased was not willing that the road be created, and appellant had expressed some dissatisfaction in this attitude and said he would give $500 if some one would buy the property of the deceased. Some time antecedent to the death of the deceased, he had impounded the appellant's hogs, and the matter of the damages was arbitrated and amounted to $14, which the appellant paid, though, according to witnesses, he was dissatisfied with the result of the arbitration.

A witness by the name of Fred Fuston, 24 years of age, together with his father, worked on the shares on the farm of the appellant. This witness testified that, a week or so before the deceased was shot, appellant said that he would give the witness a certain farm if he would help him to get rid of the deceased. This proposal the witness declined to consider. He testified further, however, that on the evening before Bollinger was shot appellant said to the witness:

"We are going to-night to get shed of Fred Bollinger."

Appellant said that the witness was going with him, but the witness said he did not want to go, whereupon appellant said:

"By God, you have got to go, as you know all about it; and if you don't, I will kill you."

He told the witness to meet him between 1 and 2 o'clock at a certain designated place. According to the witness, he went to bed with his wife early in the night and slept until about 12 or 1 o'clock, when he got up, using care to avoid awakening his wife. He put on his clothes and shoes outside of her room and went to the place designated by the appellant. Touching what occurred, we quote from the witness as follows:

"I went on down there on that string of fence north of Will Edmondson's farm. I found Rainer Mallett and Will Edmondson sitting there. They said they were going to kill Fred Bollinger. Edmondson said that I had to kill that man. I told him that I did not want to kill that man; that he had done me no harm; and that he had always been a good friend of mine. Will Edmondson said, `If you do not kill that man, I will kill you.' I told him that he would have to kill me for I would not kill that man; that he had never done me any harm in the world. Will Edmondson then says, `Well, by God, I can kill that man — he penned my hogs.' We then went on down there. * * * When we got there, Will Edmondson he reached back and handed me the gun — Will Edmondson did. He said to me, `You take that gun and go kill Fred,' and I told him that I would not do it. * * * He says, `He has not got no chance as we have got his gun.' He said that on the Sunday evening that he and Mr. Mallett went down there and got his gun. When he handed me that gun he said, `By God, you take this gun and go kill Fred Bollinger.' I told him that I would not do it. * * * Will Edmondson then said, `By God, I can kill him; and if you ever tell it, I will kill you.' Well, he then went on and taken the gun. Mr. Mallett was there with me. Will Edmondson went towards the house. It was about five minutes before I heard any shooting. There were two shots fired. I do not know just how much time there was between the two shots; it was just about like this —(illustrating). The house where Fred Bollinger lived was about 40 or 50 steps from where I was standing. It was about a minute after I heard these shots before I seen Will Edmondson. * * * He said when he come back, `Let's get away from here.' He said that he had shot Fred Bollinger."

The testimony of Fred Fuston, from which we have quoted above, is the only testimony found in the record which connects the appellant with the commission of the offense.

The witness Mallett, who was named by the witness Fuston as one of the participants in the homicide, testified on behalf of the appellant and categorically denied the truth of Fuston's testimony above mentioned. He further testified that he spent the night on which the deceased was shot at home with his wife, and she gave like testimony. This was supported by her brother who spent the night at their house. Appellant testified, denying the participation in the homicide, declaring that he spent the night at his home, and his wife testified to the same effect.

The evidence contains many matters pertaining to the theory that the shot was fired by the deceased with a suicidal intent. Among them are the declaration of the deceased to those who first came to him that he did not want a doctor; that he was not going to live; that he wanted to dispose of his money; that he did not know who fired the shot; that his clothes were powder burned; that the pistol used was his own; that the bed cover was not powder burned or punctured by the shot. However, there were some circumstances combating such theory.

The state called the witness Jones to testify to the dying declaration of the deceased which took place a short time before his death. Jones testified that he visited the deceased and had a...