Harrison v. State

• Decision Date: 30 November 1904
• Citation: 83 S.W. 699
• Parties: HARRISON v. STATE.
• Court: Texas Court of Criminal Appeals

83 S.W. 699

HARRISON v. STATE.

Court of Criminal Appeals of Texas.

November 30, 1904.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Bill Harrison was convicted of murder in the second degree, and appeals. Reversed.

C. L. Vowell, for appellant. Wolfe, Hare & Maxey, Smith & Beaty, and Howard Martin, Asst. Atty. Gen., 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 25 years; hence this appeal.

The homicide occurred on the night of the 24th of January, 1904, in the city of Sherman, Grayson county. Deceased, Robert Francis, was employed as bookkeeper at the Grayson County Oilmill, and on the particular Sunday night was at the office, attending to some business. He left the office between 8 and 9 o'clock to go to his home. He went from his office to the Frisco Railroad track, and thence south along said track towards its junction with the Cotton Belt. Shortly before reaching said junction, he was overtaken by appellant and Albert Whitten. Appellant and his companion were shown to be drinking that Sunday evening, and, after overtaking deceased, an altercation arose between them in regard to prohibition. Whitten, introduced by the state, and the only eyewitness, testified: That he and appellant were walking down the railroad, he being a few paces behind appellant. Deceased came along the railroad, going in the same direction with them, and he heard defendant say: "There goes a son of a bitch of a prohibitionist now, and I am going to do him up." They were quarreling and disputing. "I was several feet behind them, and when they got to O'Neal street they turned east, and when near the Cotton Belt Railroad, which is about 50 or 75 yards of the Frisco Railroad, I heard defendant say `that any one who was a prohibitionist, and pretended to be an anti, was a damn son of a bitch.' Defendant said: `I am the out-fightingest son of a bitch in this country, and can whip you on less ground than you can stand on.' Deceased replied, `I don't know whether you can or not.' At this time Francis was facing west, and defendant was facing east. Defendant drew back to strike deceased. I caught his hand with my left hand, and cut my hand, and told him to go on home. Deceased said, `What have you got to do with it?' I was standing north of the two, and about opposite the middle distance between them. One of them struck me in the eye. I don't know which one it was. Then defendant began striking Bob Francis, and I could not see anything else on account of my eye hurting. Defendant and I then started south, and, when we had gone a little distance in the direction of his home, defendant gave me his knife, and said he would slip back and see if anything was doing, and he would afterwards meet me at the bridge on the railroad," etc. It appears from other witnesses that in the rencounter deceased received several severe cuts on the left side of the head and near the ear—one about the base of the ear, which severed the jugular vein and pierced the pneumogastric nerve. One of the cuts on his head severed the temporal artery. After the difficulty, appellant and his companion left, going to the home of appellant. Deceased immediately returned to his office at the oilmill. He bled to death in a very short time afterwards. Several parties came in before he died, but deceased is not shown to have been able to disclose whom it was that cut him, or any of the details of the difficulty. Shortly afterwards, on the same night, appellant, Harrison, was arrested in his mother's house. Whitten, who was there at the same time, left the house without being discovered, and went to his half-brother's (Estes'), who lived in Sherman. Some time after arriving there, the officers came to arrest him, but he escaped, and was arrested two or three days afterwards in the Indian Territory. The knife with which the cutting was done was found concealed between the ceiling and wall of the house of appellant. The state claims that it was concealed there by appellant, and defendant's explanation was that he intended to place it on the wall at the instance of Whitten, whose knife it was, and that, in placing it there, it fell down between the wall and the ceiling. It was found in pursuance of a statement to the officers by Whitten. When found, it had blood on the blade, which was gapped. The state used Albert Whitten as a witness, whose testimony as to the difficulty was as stated above. The state's theory predicated mainly on said witness was that the killing was done by appellant, who had previously borrowed the barlow knife from said Whitten, and had used it in the assault, and that Whitten only interfered to separate the parties, when he received the cut on the left hand, as stated, and also received a lick in the eye. On the contrary, the theory of the defendant was that the homicide was committed by Albert Whitten. The confession introduced by the state, as made to the sheriff, is substantially as follows: That Francis came out of the mill office, and they came up with him, and he and Whitten got to talking, and Whitten asked him if he was not a prohibitionist, and he told him, "Yes," and asked him what he was. That the parties were ahead of him, and after disputing awhile they got to fussing and fighting, and Francis knocked Whitten down, and, about the time he got to where they were, it was all over, and that he took Whitten off, and went down south from there into an old field. That he proposed to go back and see what had become of the man, and Whitten said his eye was hurting him so that he could not go. That Whitten then went on up to the bridge, and he went back, but did not find the man. When he went to the bridge where Whitten was to wait, he was gone. He then went to Jennie Benson's, and from there home. This witness further stated that by the time he got to Francis and Whitten the fight was about over. To the best of his recollection, he heard deceased say: "Pardner, you have used unfair means with me. You have cut me with a knife." And Whitten said: "You hit me with a pair of brass knucks." It was shown that deceased and appellant had worked at the same oilmill, but the record fails to show that they recognized each other the night of the homicide. This is a sufficient statement of the case to discuss the assignments of error.

Appellant's first bill of exceptions calls in question the action of the court in regard to the admission of the following testimony: John Neff, a witness for the state, was asked the following question: "State what defendant said to you at the Union Depot, about 5 o'clock on the afternoon, before Robert Francis was killed that night." And he answered, "He asked me if I was a God damn spotter," and to which witness replied that he was not; that he worked there at the depot." Defendant then said, "If I thought you were, I would knock your jaw off." This testimony was objected to because the same sought to elicit evidence that was immaterial and irrelevant, had no connection with the transaction for which defendant was being tried, and would only tend to prejudice the jury against defendant. The court appends an explanation to this which appears to us to be irrelevant. The only theory upon which this evidence could be construed admissible is, as claimed by the state, that it would serve to shed some light on appellant's motive for the homicide; that is, it would tend to show that appellant had animus against any person who was a "spotter." It is sometimes permissible to resort to apparently extraneous circumstances in order to show a motive for the alleged crime. Under this head, it is sometimes permissible to show that appellant had malice against a whole class, and that a difficulty occurred with one of such class. The testimony here tends to show that appellant had such a hostile feeling against persons who were "spotters," whatever that may mean. If, in the altercation between appellant and deceased, he or his companion, Whitten, had accused deceased of being a spotter, it might have some semblance of bearing on appellant's motive. If we regard "spotter" as being a detective of those violating the prohibition law, the evidence does not show that appellant or Whitten accused deceased of being a spotter, but merely of being a prohibitionist. It does not occur to us that the testimony was admissible.

The next bill of exceptions shows that on the same evening appellant and Albert Whitten, who were together, had a difficulty with a party whom they charged with being a spotter. This was introduced in evidence, and subsequently excluded by the court. We do not believe it should have been admitted.

Appellant objected to the following portion of the court's charge: "Any testimony that has been admitted by the court to the effect that any witness has at some other time made a statement or statements inconsistent with and contradictory of the evidence of such witnesses admitted before you on this trial may be considered by you in weighing and determining the weight you will give the testimony of such witnesses, and for no other purpose." This was objected to because the effect was to entirely exclude from the consideration of the jury all of the material testimony of Mrs. Smith, Georgia Smith, and Mrs. Harrison as to the declarations of Albert Whitten, made to them by him, in regard to his connection with the killing. Albert Whitten had been used as a witness by the state, and these witnesses contradicted him as to the statements there made; and his statements there made were clearly admissible as original testimony, and this charge should have been applied to no witness except Mrs. Smith, who was contradicted by J. M. Blain as to the matter Billie Harrison had told her the night before—that Bob Francis was dead. It will be observed in this connection that appellant also requested a charge limiting the...