Gray v. State

• Decision Date: 30 November 1904
• Citation: 83 S.W. 705
• Parties: GRAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 705

83 S.W. 705

GRAY v. STATE.

Court of Criminal Appeals of Texas.

November 30, 1904.

Appeal from District Court, Coryell County; N. R. Lindsey, Judge.

Paul Gray was convicted of murder in the second degree, and appeals. Reversed.

C. P. White and S. P. Sadler, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction of murder in the second degree, five years in the penitentiary being assessed as the penalty. The homicide occurred on Christmas evening. Deceased had gone to the little town where the homicide occurred to attend a Christmas tree, but at the time he reached there the crowd had dispersed. He went up to the stores, where some parties were gathered. As deceased, Spencer, rode up, Lewis and Bramlett were trying to fight, and deceased, Spencer, asked what was the matter. Scott replied, "Well, George Lewis and Nix [Bramlett] are trying to fight," and Nix jumped up and says, "What is it to you, you God damn son of a bitch?" and Spencer hit him. Then George reached for a rock, and Nix jumped behind Joe Dick Adams, and said, "Don't let him hit me with the rock," and George Spencer said, "What are you hitting me with?" This was the testimony of George Lewis. The evidence further shows, in this connection, that the fight between George Spencer and Nix Bramlett was renewed in the house, and that during the trouble Spencer had received a cut on the face; and Bramlett was severely cut in several places; that the parties then separated. Objection was urged to the introduction of the declarations of the bystanders in the absence of defendant. The court informed counsel that, if he objected to the acts of the parties, he would sustain their objection; but counsel stated they did not object to the acts, but did object to the declarations. The killing occurred at Gray's store, some distance away from where the first difficulty occurred between Spencer and Bramlett. It is a fact that appellant had nothing to do with the first difficulty, and the facts show he was not present, though the court says, in the qualification to the bill, that appellant was in such position that he might have heard what occurred; but it is nowhere asserted or contended that appellant had anything to do with the original difficulty. We believe this testimony was inadmissible. For a discussion of this subject, see Brumley's Case, 21 Tex. App. 222, 17 S. W. 140, 57 Am. Rep. 612; Johnson v. State, 22 Tex. App. 206, 2 S. W. 609; Ball v. State, 29 Tex. App. 107, 14 S. W. 1012; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108; McClure v. State (Tex. Cr. App.) 53 S. W. 110. By the same witness—Lewis—the state was permitted to prove, after Spencer and Bramlett came out of Edwards' store, and after their separation in the absence of defendant, deceased, Spencer, said to Scott, "Scott, go get my horse and hat, and I will go get the old doctor to fix this cut on my face." This declaration was clearly inadmissible, and the testimony of Scott to the same effect ought also to have been excluded. See the authorities above cited. It may be well enough to state in this connection that after the difficulty between Spencer and Bramlett, Bramlett went to Dr. Gray's store for the purpose of having his wounds dressed; that appellant was in partnership with his father, Dr. Gray, and was in the store at the time Bramlett entered; that he took him out of the store, got a pan of water, and was washing the blood from his wounds, when Spencer came around the store to where they were, and where the killing occurred. It is not necessary to add anything to what has been said in the cases cited as to the declarations, intentions, etc., of deceased when sought to be used against appellant. Within from five to fifteen minutes after the homicide, in the house of witness Hampton, in the presence of Hampton and his wife, appellant made a statement in regard to the attendant facts of the killing. This was rejected by the court, and appellant reserved his exception. This seems to have been excluded by the court because immediately after the killing appellant had had a hurried conversation with Joe Dick Adams, in which Adams had advised him to get his horse and leave, and appellant remarked that he would not run away. Adams again advised him to get away from that immediate place. It was proposed to show by this witness that at the time appellant entered the house he was white and nervous, and very much excited; that immediately upon coming into the room he pulled down the window shade so as to prevent being seen in the house. We are of opinion that this testimony should have been admitted. Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794; Craig v. State, 30 Tex. App. 619, 18 S. W. 297; McGee v. State, 31 Tex. Cr. R. 71, 19 S. W. 764.

It is also contended that the court should have submitted a charge applicable to manslaughter. The following testimony is relied upon to suggest that issue: Appellant says he saw part of the previous difficulty between Spencer and Bramlett. "I saw...