Hicks v. State

• Decision Date: 20 February 1924
• Docket Number: (No. 7966.)
• Citation: 261 S.W. 579
• Parties: HICKS v. STATE.
• Court: Texas Court of Criminal Appeals

261 S.W. 579

HICKS v. STATE.

(No. 7966.)

Court of Criminal Appeals of Texas.

February 20, 1924.

Rehearing Denied April 30, 1924.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Will Hicks was convicted of murder, and he appeals. Affirmed.

S. F. Leslie, Fred S. Rogers, and Thos P. Steger, all of Bonham, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Appellant is under conviction for the murder of Sy Parrigan, with punishment assessed by the jury at 20 years' confinement in the penitentiary.

The killing occurred on the morning of March 30, 1922, in a barn belonging to appellant, and not very far from his residence. No one was present save appellant and deceased. Two shots were fired by appellant, both striking deceased. The state had witnesses describe, with much detail, the exact position in which the body of deceased was lying, and appear to have relied largely upon the peculiar cramped position in which it was found, together with other circumstances in connection therewith, to combat the defensive and direct testimony of appellant and his wife. The wounds upon deceased were described. Both entered from the front; one passed almost through the body, ranging downward, lodging some 10 or 11 inches lower than the entrance wound. His feet seemed to be cramped back under his body in some way. Under his right hand was a knife, and also quite a quantity of cut shavings from a corn cob; some of these shavings were on his legs and some under them; a cob was lying near his head which showed to have been whittled on. The state rested its case in chief upon the proof of conditions found at the scene of the killing — the character of the wounds and the position of the body. As we understand the record, it was the contention of the state that these conditions were such that they met and refuted the theory of self-defense supported by the positive testimony of appellant. Deceased and his wife had separated about 15 days before the homicide. Appellant and his wife testified, substantially, that deceased had left some of his property in charge of appellant, and said that he (deceased) was going to Oklahoma, and asked appellant to look after these things while he was away; that deceased advised appellant to let his (deceased's) wife have anything she wanted, even if it was all of the property; that deceased returned on the 28th of March, at which time he seemed to have changed his mind with reference to the property, and said his wife should not have any of it; that he intended to die by it, and appeared to be angry because appellant was insisting on carrying out deceased's original instructions with reference to the property. They both testified that deceased made threats against appellant, but remained at his house during the entire night of March 28th, leaving with his 11 or 12 year old boy the next morning; that he returned again on the morning of March 30th, and made inquiry for appellant from children who were playing in the yard; that appellant soon thereafter proceeded to the barn, and was discovered by deceased who immediately followed, cursing appellant; that he was cursing when he entered the barn behind appellant, and that the shooting immediately followed. Thus far the testimony of appellant and his wife is substantially the same. Appellant says, when deceased opened the door to the barn, appellant told him not to come in, to which deceased replied that he was going to "cut his G____ d____ throat"; that appellant at the time, was attending to a call of nature; that he jumped up, and, when deceased stepped inside the door, he saw a knife in his hand, and that appellant fired two shots. Appellant seems to have been very deliberate in his testimony, explaining in detail how he aimed; that he intended to kill if it was necessary to keep deceased off of him, and described accurately where he hit deceased, and how he knew he hit him in these particular places because that was where he had aimed to hit him. The state proved by Johnny Parrigan, 12 year old son of deceased, that his father and appellant had been in the barn some 30 minutes before the shots were fired; that he and appellant's son had been down about the barn playing but that appellant told them to go back and not come down to the barn; that he and the other boys went back and sat down on a cultivator near a wagon; that they were down near the lot at the time appellant told them to go back.

Appellant complains because a state's witness was permitted to place state's counsel upon a table, and arrange his body and limbs in the position of deceased's at the time the body was discovered. No one was present in the barn at the time the killing occurred except appellant and deceased. It was necessary for the state to rely upon proof of circumstances to refute appellant's statement as to the manner in which the killing occurred. It appears to have been the opinion of counsel for the state that this depended largely upon the exact position of deceased's body when discovered, immediately after the killing. We see no objection to the character of demonstrative evidence used by the state in this instance. Wharton's Crim. Evidence, vol. 2 (10th Ed.) sections 518a and 518c. Almost this exact question, and certainly the same in principle, was decided against appellant's contention in Stembridge v. State, 94 Tex. Cr. R. 207, 250 S. W. 180.

Bills of exception 3 and 4 will be considered together, as they relate to the same matter. After appellant's wife (Mrs. Lula Hicks) had testified for appellant, and had been cross-examined, she was recalled by the state to lay a predicate for impeachment. She was asked if she did not state to deputy sheriff Leeman, shortly after the killing, that there had been no prior trouble between her husband and deceased, and that she knew nothing about any difference or difficulty between them until she heard the shots fired. She denied making such statement. Leeman testified that she did make it. Appellant objected to this procedure on the ground that the subject inquired about by the state was new matter about which appellant had not made inquiry. On direct examination, the wife testified for appellant about deceased having left his property in appellant's custody at the time he and his wife had separated; that when deceased came back a few days before the killing, he had a shotgun and a pocket knife, and also a bottle of medicine which he said would kill a 100 people; that during the night, at the house, deceased continually talked about killing people; that he was dissatisfied because appellant had loaded the household goods on a wagon, and was getting ready to haul them away, in obedience to instructions given by deceased at the time he left, some 15 days before; that deceased said his wife should not have any of the property, and that he would die by it. She further testified that deceased "wanted to jump on Will (appellant) there in the house"; that she begged him not to have any trouble, as some of her children were sick, to which request deceased replied that he would "get Bill further down the road"; that he said this several times; that deceased left their house the next day but came back on the morning of the killing; that when appellant went to the barn, deceased "just fell in after him, cursing"; that she saw deceased jerk the barn door open, and said, "I never heard the like of cursing in my life."

In his Annotated Penal Code, § 153, p. 87, Mr. Branch cites many cases, and announces the correct rule that —

"The wife of the defendant may be impeached by proof of contradictory statements as to material matters inquired about on her examination in chief."

The objection urged by appellant is that he did not examine his wife with reference to any conversation she may have had with Leeman, relative to the killing. If the impeaching evidence was pertinent to what she had testified in appellant's behalf on direct examination, it would be proper for the state to impeach her thereon. It is not required that the exact matter should have been gone into by appellant on his examination of the wife. The...