Halbert v. State, 20614.

• Decision Date: 20 December 1939
• Docket Number: No. 20614.,20614.
• Citation: 137 S.W.2d 1010
• Parties: HALBERT v. STATE.
• Court: Texas Court of Criminal Appeals

137 S.W.2d 1010

HALBERT v. STATE.

No. 20614.

Court of Criminal Appeals of Texas.

December 20, 1939.

Rehearing Denied March 20, 1940.

Appeal from District Court, Kendall County; K. K. Woodley, Judge.

J. T. Halbert was convicted of murder, and he appeals.

Affirmed.

Vickers & Campbell, of Lubbock, G. C. Jackson and John T. Spann, both of Crystal City, and S. Engelking, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

The offense is murder, and the punishment assessed at confinement in the State penitentiary for a term of five years.

The facts produced by the State show that appellant, a man sixty-four years of age, had a wife, Mrs. Lena Halbert, who lived with him in the town of Crystal City, in Zavala County, for two years prior to the killing herein complained about. Appellant was the recipient of a pension from the Federal government. We gather from the record that both he and his wife had been previously married, and had children from such former marriage, none of whom lived with them. That sometime prior to the killing appellant and his wife had endeavored to divide their properties, the first home going to appellant, and one being purchased next door to where the deceased, B. G. Holloway, lived,—he being pastor of the Baptist church at Crystal City,—going to Mrs. Halbert. The title to this last home being taken in the name of appellant's wife and he taking title to the first home. There was no friction between appellant and deceased on July 10, 1938, at which time appellant, who owned an automobile and a trailer thereto attached, sold some of the furniture to Mrs. Hooks, and attempted to sell a rug, a portion of such furniture, and upon her refusal to purchase such rug, she testified he made the remark that he was leaving his wife, that she would not sit on his knee any more, that he was going where he could find plenty of pretty girls. It is also shown that he made remarks of like import to other witnesses to the effect that his wife was going through the change (of life) and would not have anything to do with him; that she had been a good little heifer, but that they could not get along; that she would not let him play with her any more, and he was going to some other part of the country where he could have a little fun; that he was going away and not coming back; that he was going to where they had more women.

Appellant left in his car and trailer on July 10th, and left his wife at the new home next to the deceased, saying he was going on a fishing trip. He returned on August 10th and found that his wife had rented the home, or a portion thereof, to an evangelist singer by the name of Smith, who was living there with his daughter, Barbara Smith, and that his wife was working for Rev. Holloway, Mrs. Holloway being an invalid, and who needed some one to attend to the household work. Appellant had previously recommended his wife for such work, stating that he had found her doing such work, and that she could do it again. Three days after his return, to-wit: on August 13th, appellant consulted a lawyer, and had filed a petition for divorce, took his wife to the lawyer's office, and the wife signed a waiver of citation therein, the petition alleging cruel treatment on the part of his wife. Appellant testified that he then began to hear rumors of misconduct between the deceased and his wife, and that certain suspicious circumstances were observed by him that caused him to think that there were improper relations being maintained between the deceased and his wife. The division of property was made on August 12th, and the divorce filed on August 13th, and on the same day appellant rented the pistol with which the deceased was shot. After that appellant claims to have had many conversations with his wife, attempting to get her to come back and live with him, and it was his theory that the deceased would not allow the wife to do so; that the deceased's influence over appellant's wife was so great that appellant could not control her, and although the wife would promise to return to him, the deceased would talk to her and she would have some excuse for not coming back, the usual one being that the deceased would not agree for her to do so. The deceased was in the hospital sick from June 27th to July 28th; about the 6th or 7th of August he was under treatment at San Antonio for about ten days. Sometime in August the deceased took his wife, an invalid, to Reagan Wells, and Mrs. Halbert went along with them, a nephew of the deceased driving the car. When the parties were getting ready to leave, appellant appeared on the scene and requested his wife to go with him, appellant, in his car. The deceased stated that they might need her with deceased's wife. Appellant followed them in town and out of town, and finally ran his car at a high rate of speed and got in front of the deceased's car out on the road, and again tried to get his wife to get out of the deceased's car, where she was riding with deceased's sick wife and the deceased's nephew on the front seat;—this Mrs. Halbert refused to do. He followed them again for quite a distance, and again ran his car up to and in front of them, ostensibly for the purpose of telling them that one of their tires needed some air. Finally the deceased reached his destination, and after having spent about an hour locating his wife in convenient surroundings, the deceased and the nephew returned to Crystal City, leaving the two women at Reagan Wells. In the meantime Mrs. Holloway, the deceased's wife, had told appellant that she intended to discharge Mrs. Halbert on September the first, Mrs. Halbert having worked there for a month or so before any objection thereto had been made by appellant.

After the two women had stayed awhile at Reagan Wells, the appellant testified that he approached Rev. Holloway and asked him if his wife had returned from the Wells, and the deceased said that she had not. In the meantime appellant had moved his trailer from a distant part of town and had parked the same across the street and in front of the house where his wife lived. There was some undisclosed trouble relative thereto, and a deputy sheriff soon came up and took appellant into custody and conveyed him to the court house, keeping him there only a short time, and then releasing him. He then returned to his trailer. Soon thereafter, according to his testimony, he saw some children trying to get in the Holloway house and no one answered their calls; the front door seemed to be locked. He then saw his wife at her home next door and went over to her and gave her a letter from her daughter. Appellant then went back across the street to the trailer. He could see his wife reading the letter, standing in the screened front door. He then saw the deceased coming from his home and going through a low salt cedar hedge that separated the two back yards, towards appellant's wife's home. He heard the deceased call Mrs. Halbert, and she came towards the back of the house. Appellant approached his wife's home, and as the deceased passed the house corner "he throwed up his hand (this way) like he was going to shoot, and he had something in his hand, and I took it to be a gun, but the gentleman was so quick I could not say it was a gun, but I most knowed it was a gun he had in his right hand, holding that kind of stub over it, going in a hurry. As to what I did from the time I saw him coming thru the hedge, well, when I saw him coming thru the hedge in a hurry and saw he had something in his hand, and I took it to be a pistol, he went on to my back door and called my wife, and she dropped her hands holding the letter and ran to the back door to see him, there are three doors in a row, and I could see she ran all the way back; * * * When he went around the house, he was standing right agin the step, and my wife was on the top step; they were just as close as could be, and when he throwed his hand up, he looked like he was going to shoot, and I flinched, and I shot, I do not know how many shots, I shot until he fell, and I went around thru' the house, and met a woman there, and she fell down on the floor, and I told her I was not after her, and I went to the court house and gave up. I do not know what was the occasion of my going thru' the house, I just do not know, except I guess, I thought never could think why I went thru' the house. I did not say a word to Holloway, and he did not say anything to me, not a word spoken. * * * As to whether he had anything in his hand, I did not have time to look, I did not see anything in his hand, I was looking out for myself; as to how soon after he did that that I commenced to shoot, as quick as I could raise my hand, I commenced. I commenced to shoot to try to protect myself."

In contradiction of the above, however, the State introduced a statement made to the sheriff soon after the killing by the appellant, which is as follows: "In connection with the statement that was made by the defendant to me in reference to that gun and where it could be found, in that same conversation he told me that he was standing in his trailer house looking out the window to where his wife lived, that he saw Holloway cross the hedge and go to his back door, that he saw a woman go from the front of the house to the rear that he thought was his wife until after he killed Holloway and came back thru' the house and found out he was mistaken, that it was another woman; he said when he turned the corner Holloway was stooped down over a barrel of feed, that when he raised up he had a cup or can in his hand, he looked around and saw him and threw up his hand and went to shooting. Holloway threw up his hand, and Halbert went to shooting; his first shot was low and he leveled his gun, then he walked thru' the house, went to the court house and waited for an officer."

It is worthy of note that the deceased was a one-handed person,...