Harrell v. State

• Decision Date: 27 April 1898
• Parties: HARRELL v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 581

HARRELL v. STATE.

Court of Criminal Appeals of Texas.

April 27, 1898.

Appeal from district court, Frio county; M. F. Lowe, Judge.

W. C. Harrell was convicted of murder in the second degree, and he appeals. Affirmed.

Franklin & Cobbs, J. W. Hill, John W. Preston, Jas. A. Waltom, and Mason Maney, for appellant. W. W. Walling, Lane & Hicks, and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 30 years; hence this appeal.

The homicide occurred in Atascosa county, at a little place called "Campbellton," on the 18th of May, 1897. The venue was changed to Frio county. The testimony on the part of the state showed that bad blood had existed between the parties for some time prior to the killing. On an occasion about a month before the homicide occurred, appellant and deceased met at a saloon in Pleasanton, and an altercation occurred, in which the deceased was assaulted by the defendant, and beaten over the head with a pistol. A severe wound was inflicted on his forehead, the flesh being cut immediately over his eye. From this and other wounds the deceased bled profusely. He escaped from the defendant, and after this the feeling appears to have been intensified. It appears that a school house in the neighborhood was burned, and defendant charged this upon the deceased, against whom he made an affidavit for arson. On the trial of said charge, deceased was discharged, and then made an affidavit against defendant before the justice of the peace at Campbellton for malicious prosecution. The case was set for trial on the evening of the 18th of May, 1897, and the parties were in attendance at Campbellton on said day. Defendant and his relatives, the three McAdas, went from the home of the former to Campbellton. The testimony shows that they carried arms in the wagon, and arrived at Campbellton some two or three hours before the deceased, who came in the evening on horseback, unarmed, and arrived about a half hour before the homicide occurred. He hitched his horse a little north of the store where the court was to be held. The testimony of the state tends to show that he proceeded from there towards the store, and was in full view of the defendant, who was on the street, some 30 or 40 feet distant. In a short time, the court was called, and deceased proceeded towards the court room. Appellant, about the same time, started to the court room from an opposite direction, and intercepted deceased near the sidewalk of the old storeroom where court was to be held. Deceased turned his head in the direction of defendant, and defendant shot him, the ball entering his forehead. He fell with his head on the rock pavement. Defendant backed off from him, and was arrested in a few moments by Sheriff Avant, who came out of the court room. One witness for the state testified that, immediately after the shooting, he heard defendant say, "That's the way you intended to do me." Avant testified for the defendant that, when he came out and approached defendant, he said he shot deceased because he made a motion as if to draw a gun. Two or three witnesses testify for the defendant that at the time of the killing, and before defendant shot deceased, they saw the deceased make a motion with his right hand as if to draw a pistol. The state's witnesses controvert this, stating that he made no demonstration whatever; that he had his hat down over his face, and was walking with his eyes and head downward, and evidently did not see the defendant until he was confronted by him, and was immediately shot down. The defendant proved a number of threats by the deceased to take the life of the defendant, most of said threats being of recent origin; that is, since the charge of burning the school house, and the assault made by defendant on deceased at Pleasanton, but some of said threats were more remote in time. Some of said threats were communicated to appellant, and some were uncommunicated. It was also shown by the defendant that, about a month or six weeks before the homicide, the deceased, in connection with the threats against defendant, also denounced his wife as a whore, which threat and insult were communicated to defendant by the witness McAda on the evening before the homicide. The wife of the appellant also testified that, about 11 years before the killing, deceased came to her house, in the absence of her husband, and cursed and abused her husband, and cursed and abused her; that she only communicated this matter to defendant on the night before the homicide. It was also shown by a number of witnesses for the defendant that deceased was a dangerous man, and one likely to carry out a threat made by him. The state, in rebuttal of the demonstration with the right hand testified to by the defendant's witnesses, showed that the deceased did not use his right hand in shooting a pistol at all, but used his left hand exclusively for that purpose, and that this habit was known to the appellant. This testimony, however, was controverted by the appellant. The state also rebutted appellant's testimony in connection with the insults to the wife of the appellant, by testimony tending to show that appellant was in proximity to deceased a little while before the homicide, and before the fatal meeting, and must have seen deceased. This was substantially all the facts adduced. The theory of the state was that the killing was unprovoked, and was done upon malice, and was either murder in the first or second degree. The theory of the appellant was that the killing was done in self-defense; that deceased, just before he was shot, made a demonstration as if to draw a weapon, and this, in connection with the bad blood existing between them, and the threats made by deceased against his life, was sufficient to induce him to believe that his life was in danger, or he was in danger of great bodily harm from an assault then being made, or about to be made, on him by the deceased; that, under the circumstances, he had a right to kill him. He further contended that the homicide, at the most, could be no more than manslaughter, because of the insults to his wife, and that his passion was thereby excited, and that he slew him on the first meeting, after such insults had been communicated to him. We have made this summary of the main features of the case in order to review the question made by appellant, and insisted upon by him, as being errors which require a reversal of this case.

We will treat the fifth, eighth, ninth, eleventh, and twelfth assignments of error together, as they present the same question in different shapes; that is, they are all assignments on account of the refusal of the court to permit the defendant to introduce in evidence statements made by himself to other witnesses on various occasions. The fifth assignment is substantially as follows: Mrs. Harrell testified that, about two months before the killing, she and her husband and family went to church, and the deceased was also there. After church, she and her husband (defendant) started home in a wagon. Deceased and two other men, with guns, came in sight about 1½ miles from the church, coming across the country, and in the direction of the road ahead of the wagon in which the defendant and his wife were traveling. Defendant had the wagon to turn around, and they went back, and he borrowed a horse from one Roundtreet. This testimony was admitted, and appellant offered to show by Mrs. Harrell in that connection that her husband stated that he wanted to go home another way, to avoid the deceased. With reference to this particular testimony, we would state that this was no part of the res gestæ pertaining to the homicide. It was sought simply by this declaration of the appellant to prove his reasons for returning to the church and borrowing the horse and taking another road home, which, as he stated, was to avoid the deceased. Evidently, this purpose was made as manifest to the jury by the proof of the acts done as if appellant had been permitted to testify as to his intention. The jury, if they believed the testimony, could have put no other construction on the act of the defendant than that he was actuated by a purpose to avoid the deceased on that occasion. And so we fail to see any injury that could have ensued to the appellant by the exclusion of this testimony, even if its admissibility be conceded as a part of the res gestæ of the appellant's acts on that occasion. We would further observe in regard to this testimony that the bill shows no act of deceased or his companions manifesting a hostile intention towards the appellant on that occasion. So far as we are advised, deceased's mission on that occasion had no reference to the appellant, and was absolutely harmless.

The eighth assignment of error shows that one Jerd Campbell, a witness for the appellant, testified, on the day that defendant was shown to have assaulted and beaten deceased at Pleasanton, that he heard deceased thereafter make threats against appellant, and that he was hunting for a gun to kill him, etc. He communicated these threats to the appellant, and then it was proposed to prove by him that appellant said: "I will go to see Avant [meaning the sheriff], and see if I can get off. If I can, I will go home, because I do not want to have any trouble with the deceased. I do not care to meet him, and want to keep out of his way." Defendant also offered evidence in this connection to show that appellant came to Avant, he being a witness in attendance on the court at that time, and asked to be released, stating that Peeler had threatened to kill him, and had tried to borrow a gun for that purpose, and that he wanted to go home, etc., to keep from meeting Peeler, and that Avant excused him, and about an hour thereafter appellant did go home. On objection, this testimony was excluded, as being...