Fendrick v. State

Decision Date13 April 1898
PartiesFENDRICK v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from district court, Falls county; Sam R. Scott, Judge.

Columbus Fendrick was convicted of murder, and he appeals. Reversed.

W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at imprisonment in the penitentiary for life; hence this appeal.

There are but two questions that require consideration: First, whether or not the court erred in refusing to permit the defendant to ask certain questions of the special veniremen; and, second, whether or not the court erred in failing to give the jury a charge on murder in the second degree. A proper discussion of these questions demands a brief statement of the nature of the case.

Appellant was a negro, and had a negro wife. Deceased was a white man. They lived near each other, not more than 200 yards apart. Up to the time of the homicide, the record shows that they were on friendly terms. The homicide occurred on Sunday night. On the Saturday night previous, deceased and his wife spent the night at Sanderlain's, who lived some two or three miles from the deceased. Deceased left Sanderlain's about 9:30 o'clock on Sunday, leaving his wife, who returned home later, arriving there about 2 or 3 o'clock in the afternoon. When she arrived, her husband was not at home, but arrived about 30 minutes later, and remained there during the balance or the day up to the homicide, which occurred between 8 and 9 o'clock that night. The evidence shows that deceased was in his house, reading a book; that some one called him. He went to the door, and the party asked him to come out, that he wanted to see him. Deceased went out a short distance from the house, and in a short time a gunshot was heard. Deceased's wife ran out, and found her husband on the ground, wounded. She further stated, "When I got out there, I said, `What, in the world, has happened? Who did it? It was Columbus.' I did not think it was Columbus, though, as they had never had any trouble. He [her husband] said, `It was that scoundrel Columbus.' I asked deceased why he did it, and Mr. Boyd [deceased] replied, `He said I insulted his wife.'" We would state in this connection that Mrs. Boyd testified that she recognized the defendant's voice when he hallooed for her husband, and asked him to come out. It was also shown by the witness Dr. Whiteside that deceased made a statement to him in regard to the matter. "He said that defendant did it. I asked him if he and defendant had had any row, and he said, `No;' that he (defendant) just called him out, and said, `What is that you said to my wife?' and shot me. That is all there was of it." Defendant's wife testified that, on that Sunday morning, she was at home with her three children, about 10 o'clock deceased came to her house, and asked where Columbus was, that she told him that she did not know. Then, according to her own language, "he asked me if I ever frolicked with the men. I asked him what he meant by that, and he asked me if I could give him some; and I then told him that I did not do that kind of business. He then went on home." She further stated that defendant came home about 12 o'clock that day; that she was not certain as to the time; and, while he was eating dinner, she told him about what Mr. Boyd (deceased) had said to her; that her husband quit eating, and remarked he would see Mr. Boyd about it; he seemed to be mad, and did not like it; that he did not have very much to say; that she next saw him about sundown, and he then seemed to be in a bad humor. The testimony further shows that he made some effort that evening to get some cartridges to fit his gun, from a neighbor who had previously promised them to him. When he returned, late in the evening, Arthur O'Neal, a brother-in-law, came with him; and, directly after the shooting, O'Neal and the wife of the defendant were seen going rapidly in the direction of O'Neal's home, which was in the neighborhood. After the homicide, defendant went to the house of one Dean De Grate, and told him that he had killed Boyd, the deceased, but did not tell him why or any of the circumstances. He desired to borrow a horse from De Grate, in order, as he said, to go to Chilton, and thence to Marlin, and surrender to the sheriff; but the party refused to lend him the horse. Defendant was arrested by one Williamson. He evidently surrendered to him, though this witness does not say so in terms. He states that defendant told him "that he wanted him to see him safe to Mr. Owens or Sheriff Emerson; he wanted to get the protection of the officers." After he was arrested, he made substantially the same statement to the officers, in regard to the cause of killing deceased, as heretofore stated. We give his own language, as testified by the witness Williamson, to wit: "After Owens had warned him, defendant stated that he had killed Mr. Boyd. He said that he went up to Sanderlain's that day, and, when he got home that evening, Hattie (I think that was the name he called her), his wife, told him that Boyd had insulted her. He said he was eating supper at the time, and he just dropped his knife and fork, and he could not stand it; and he just got up, and got his gun, and went over to Boyd's to speak to Boyd, and that he spoke to Mr. Boyd, and Mr. Boyd reached his hand back this way (indicating the direction of his hip pocket), and said, `God damn you,' and he shot him." This is substantially all the testimony that has any material bearing on the case.

The bill of exceptions with reference to the questions propounded to the jurors was as follows: "On the trial of the case, when several members of the special venire were being examined on...

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14 cases
  • Rosales-Lopez v. United States
    • United States
    • United States Supreme Court
    • 21 Abril 1981
    ...a juror, do equal and impartial justice between the State and a colored man.' State v. McAfee, 64 N.C. 339.2 See, also, Fendrick v. State, 39 Tex.Cr. 147, 45 S.W. 589; State v. Sanders, 103 S.C. 216, 88 S.E. "1 In the Pinder case, supra, the court said: 'Though the question is not in expres......
  • Swain v. State of Alabama, 64
    • United States
    • United States Supreme Court
    • 8 Marzo 1965
    ...State, 164 Ark. 397, 262 S.W. 636 (1924); People v. Car Soy, 57 Cal. 102 (1880); People v. Reyes, 5 Cal. 347 (1855); Fendrick v. State, 39 Tex.Crim. 147, 45 S.W. 589 (1898); State v. Carson, 131 S.C. 42, 126 S.E. 757 (1925); Wasy v. State, 234 Ind. 52, 123 N.E.2d 462, 46 A.L.R.2d 1389 (1955......
  • v. United States
    • United States
    • United States Supreme Court
    • 21 Abril 1981
    ...a juror, do equal and impartial justice between the State and a colored man.' State v. McAfee, 64 N.C. 339.2 See, also, Fendrick v. State, 39 Tex.Cr. 147, 45 S.W. 589; State v. Sanders, 103 S.C. 216, 88 S.E. "1 In the Pinder case, supra, the court said: 'Though the question is not in expres......
  • Maddux v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 9 Junio 1993
    ...Deprivation of this valuable right is a showing of injury sufficient to necessitate reversal." Id. at 409 (citing Fendrick v. State, 39 Tex.Crim. 147, 45 S.W. 589 (1898)). Racial prejudice was also the touchstone in Plair v. State, 102 Tex.Crim. 628, 279 S.W. 267 (1925). As with Abron, the ......
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