Ex Parte Crawford

• Decision Date: 05 November 1924
• Docket Number: (No. 9023.)
• Citation: 265 S.W. 906
• Parties: Ex parte CRAWFORD.
• Court: Texas Court of Criminal Appeals

265 S.W. 906

Ex parte CRAWFORD.

(No. 9023.)

Court of Criminal Appeals of Texas.

November 5, 1924.

Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.

Application by William Lester Crawford for bail. From order denying bail, he appeals. Reversed and bail granted.

Jed C. Adams, Alvin Owsley, and Robert B. Allen, all of Dallas, for appellant.

Shelby M. Cox, Criminal Dist. Atty., of Dallas, and Chas. L. Black, Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., all of Austin, for the State.

HAWKINS, J.

This is an appeal from an order of the judge of criminal district court No. 2 of Dallas county, denying relator bail.

On the morning of September 11, 1924, as Paul M. O'Day was approaching the elevator in the building where his office was located relator called his name, and as O'Day turned towards him in response to the call relator shot him several times with a pump shotgun. Immediately after the shooting relator said, "You can't insult my mother."

One of the propositions urged here is that the evidence raised the issue of manslaughter predicated on an insult to a female relative, and a killing upon the first meeting after learning of the insult (article 1132, subd. 4, and article 1133, Pen. Code), and that this issue being in the case relator is entitled to bail as a matter of right.

A suit had been filed contesting the will of Colonel W L. Crawford by the terms of which his wife, relator's mother, was the principal legatee. Mrs. Crawford and relator were party defendants in the suit, the contest being based upon averment of undue influence exerted by Mrs. Crawford to secure the will to be executed in her favor.

The evidence of one Willis Evans had been taken by oral deposition which contestants claimed showed undue influence over the testator by Mrs. Crawford originating previous to her marriage with him. Upon trial of the case in the district court, certain portions of the deposition were excluded, contestants claiming this was an erroneous ruling on the part of the trial court. Judgment was entered in the district court in favor of the proponents of the will and the case was appealed to the Court of Civil Appeals of the Fifth Supreme Judicial District. Mr. O'Day, as one of the attorneys for contestants, wrote the brief in which he was urging to the appellate court that the lower court committed error in excluding certain portions of the evidence in the deposition. He set out in the brief said evidence, and drew inferences therefrom upon which he based certain propositions of law. Relator secured a copy of the brief the day before the killing, read it that night, and became enraged over it. In talking to his mother late in the night he mentioned the brief in general and referred especially to the evidence of the witness Evans. Although an attorney himself and a party to the suit relator does not appear to have read the brief prior to the night before the killing which occurred early the next morning. The evidence is conflicting whether he was present and heard the oral deposition of Evans taken. It is upon statements in the brief upon which the charge is predicated that deceased had insulted relator's mother. We think it unnecessary to set out the testimony of Evans, but based thereon O'Day wrote in the brief as follows:

"Such testimony, in conjunction with other testimony introduced, is indicative of relations between the testator and the defendant, prior to their marriage, of a different and less honorable and conventional character than those which usually precede the marriage of an honorable man and an honorable woman, and which not infrequently explain and precede the marriage of a man of the age of the testator, at that time, to wit, 58, with a woman of the age of the defendant at such time."

And again:

"That the testimony is indicative of unconventional relations between the testator and the defendant probative of the fact, nature, existence and origin of influence on the part of the defendant over the testator and of its undue character."

And again

"Such testimony, relating as it does to unconventional dress at an unconventional hour in the morning, when the testator was departing in an intoxicated condition, requiring assistance, from the house of the defendant prior to the marriage, is indicative of unconventional relations probative of the fact, nature, extent, and origin of influence on the part of the defendant over the testator, and of the undue character of such influence."

We quote from Walker v. State, 89 Tex. Cr. R. 76, 229 S. W. 527, the following, which appears applicable to the matter now under consideration:

"In the case before us, if the language imputed to the deceased by the appellant was insulting language within the meaning of the statute, it was the duty of the court to inform the jury that if used by the deceased, as detailed by the appellant, it constituted adequate cause to reduce the offense of manslaughter Where the testimony shows the use of language by the deceased concerning the female relative of the accused, its interpretation is primarily for the trial judge; that is to say, he is called upon to determine the import of the language. If, given its natural or obvious meaning, the language signifies an insult toward the female relative, it then becomes the duty of the court to recognize this meaning in his charge, and tell the jury that if the language was used, or if the appellant was informed that it was used, as the case may be, that adequate cause existed by reason thereof. If, however, the language used is not susceptible of the construction that it was an insult toward the female relative, then it is not the duty of the court to tell the jury that it was adequate cause. This is illustrated by the numerous instances in which it has been decided by the trial judge that language obviously insulting to the accused was not within the statute touching insulting language toward a female relative, and this decision upheld upon appeal. Simmons v. State, 23 Tex. App 653, 5 S. W. 208; Levy v State, 28 Tex. App 203, 12 S. W. 596, 19 Am. St. Rep. 826; Hayman v. State...