Gray v. State

• Decision Date: 11 November 1908
• Citation: 114 S.W. 635
• Parties: GRAY v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W. 635

GRAY v. STATE.

Court of Criminal Appeals of Texas.

November 11, 1908.

On Rehearing, December 14, 1908.

Appeal from District Court, Burnet County; Clarence Martin, Judge.

Don Gray was convicted of manslaughter, and appeals. Reversed and remanded.

Flack & Dalrymple, Ike D. White, T. E. Hammond, and McLean & Spears, for appellant. F. J. McCord, Asst. Atty. Gen., Dayton Moses, Dist. Atty., W. C. Linden, and Slator & Oatman, for the State.

RAMSEY, J.

On January 12, 1907, in the village of Valley Springs, in Llano county, appellant shot and killed Will Phillips. This much was admitted. The appellant was at the time a young man some 23 years of age, living on a ranch some miles away from the scene of the homicide. The deceased was a man about 40 years of age, and had been staying at the house of appellant for a short time before the killing, engaged in trapping wolves. The parties were well acquainted, and for many years had been very close and intimate friends. Deceased left the house and employment of appellant on the day before the homicide. The shooting occurred on Saturday. On the day before, appellant's wife advised him of a gross and serious insult offered her by Phillips at their home in appellant's absence. This fact was attested by the testimony of appellant, his wife, and one Gordon Mays, his brother-in-law, and furnishes the only suggestion of any difference or ill will between the parties. On the day of the homicide deceased was in the village of Valley Springs, at or near the store of one Mays, when appellant, accompanied by Gordon Mays, drove into town in a buggy. The store where appellant was fronted north, with a front gallery extending on the east side for some little distance back. There was a door at the south end of the building. Soon after his arrival in town appellant accosted deceased, and said to him that he desired to see him. A number of persons testify to having seen appellant and deceased engaged in conversation some 10 to 20 yards from the southeast corner of the store building. Deceased was seen to have a knife in his hand, whittling. There was no loud talk, nor does any one except appellant undertake to give any account of any portion of their conversation. There was no exhibition at the time of any unfriendliness, and there was no loud or boisterous talking or anything to indicate that the conversation was in anger. After talking some little while, appellant and deceased left the place where they had been standing, deceased going rather in front, and when they had reached a position out of sight of any of the parties on the east gallery three shots were heard, fired in rapid succession, and almost immediately deceased was seen coming in at the south door of the store limping badly, and, after having advanced some 10 to 20 feet inside of the store, fell or sank down near some nail kegs and expired without having said a word. Very soon after deceased appeared at the doorway, appellant also came from the same direction and through the same door, with a pistol yet in his hand. Appellant's testimony was to the effect, in substance, that, after he and deceased retired a little distance to themselves away from the store and the crowd, he, in substance, asked the deceased if he had not been treated right at his house, to which deceased replied that he had; that thereupon appellant asked him why he had treated Nora, his wife, in the manner he had, to which deceased replied that he did not blame him for being mad, but he didn't intend to take any of his abuse; that appellant then told him that he had abuse for him, and he would have to take it, and that deceased in the meantime was walking rather towards the door of the store, and almost immediately before getting to the door, turned around to him and said to him in an angry manner, "Shut up!" to which appellant replied, "You will have to make me," and the deceased started at him with a knife, saying that he could or would make him shut up, and that in his own self-defense he fired, striking deceased in the breast; that deceased then rather turned, and he continued to rapidly shoot until he had fired two other shots. The testimony showed that there was one wound in deceased's body just under and below the shoulder blade behind, and another one in line with it, but somewhat higher, and some three or four inches above the left nipple, and another one in his hip behind, and that in deceased's groin there was a flattened bullet lodged just under the skin. There was another wound just over the ear, some inch or two inches long, and probably a half inch wide. It was the theory of the state that the wound in the back under the shoulder blade was the point of entrance of a bullet, and the same emerged in front, but slightly above the left nipple. They further contend, which was obvious, that another shot entered behind in his hip and lodged in his groin, and that the third shot had taken effect just above his ear. This, of course, was not consistent with appellant's contention, which was to the effect, in substance, that the wound in the breast was a wound of entrance, and that the shot under the shoulder blade and in the hip represented the evidence of the other two shots, and that the wound in the head was not caused by a bullet but due to a fall.

Appellant was indicted in the district court of Llano county on May 1, 1907. The precise date of his arrest is not shown by the record. On May 8, 1907, appellant filed in said court his motion in writing, under oath, setting up the fact in substance that when he fired the first shot at the deceased the said deceased was facing him and was in the act of making an assault upon him with a drawn knife, and that the theory of the defense was that the first shot entered the body of deceased and was fired by the defendant in his own self-defense, while there would be testimony introduced by the prosecution tending to support their contention that all the wounds in the body of the deceased were made from the back; that the evidence would show that there was no eyewitness to the tragedy, or to the position of the deceased when the first shot was fired, except himself; that the facts were that the first shot so fired took effect in the breast, and did not pass through the body of deceased, but lodged therein, and that the other shots fired were fired in rapid succession as deceased turned away, and inflicted the wounds in the back part of the body, neither of which shots passed through the body but lodged therein, and that there were then three bullets in the body of said deceased, all of which could have been, and could yet be, definitely ascertained by an autopsy of the body of deceased. It was further averred in said motion that no examination was made of the wounds in the body of deceased; that said wounds were not probed so as to ascertain their range or depth, and that a very indifferent examination was made of the external appearances of said wounds, and that no specific examination, other than to casually look at them, was made of said wounds, as to their external appearance or otherwise, by any person of knowledge or experience in such matters; that the body of deceased was taken in charge by the relatives and friends of deceased, and interred in the cemetery at or near Valley Springs, in Llano county, Tex., on or about the 13th day of January, 1907, the exact location of which is well known and can be pointed out by the citizens of that vicinity, and where said body now remains interred, and over which the defendant never had, and has not now, any character of right or control; that he is informed and believed it is within the power of this court to appoint a commission of reputable and competent physicians and surgeons to make an autopsy of the body of deceased, and order that said commission cause the body of deceased to be disinterred, and that such commission make such thorough examination of said body as will enable them to give definite and reliable testimony of the character of said wounds, their range and depth, and as to the number of bullets lodged in the body of said deceased. He further averred in said motion that, if the law does not provide for the compensation of such a commission, he will cause to be deposited, and now tenders into this court, such reasonable sum of money as may be fixed by the court with which to pay the reasonable costs and expenses of such commission, including a reasonable compensation to such commission; that there was no eyewitness to the firing of the first shot, who saw the positions of both defendant and deceased, and that such examination is material to the defendant upon the trial of his cause, in that the result of same would show that the wound in the breast of the deceased entered from the front. It is further averred that the failure to make such examination of such wounds was not by his procurement or consent, and he knows of no other source from which the evidence herein sought could be procured, except by and through the procedure herein sought, and that it never has been within his power, and never can be within his power, to have such examination made and to obtain the benefit of the result thereof, except through the power of this court, the exercise of which is now prayed for; that this application is not made for delay, but that justice may be done. Wherefore he prayed for the appointment of a commission of such number of reputable and competent physicians and surgeons as the court may deem proper, and that they be ordered to cause the body of deceased to be disinterred, and that they make such examination of the body as shall be necessary to ascertain the nature, range, character, and depth of the wounds therein and the number of bullets lodged in said body, and that the trial of this cause be postponed to a future day of this term, or the cause be continued, as the court may deem proper, until the next term of this court,...