Hightower v. State
| Decision Date | 31 March 1926 |
| Docket Number | (No. 8906.) |
| Parties | HIGHTOWER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Brazos County; W. C. Davis, Judge.
John Hightower was convicted of murder, and he appeals. Reversed and remanded.
F. L. Henderson, of Bryan, and Bowers & Bowers, of Caldwell, for appellant.
Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.
The offense is murder, and the punishment is 15 years in the penitentiary.
The killing occurred in the city of Bryan, and the parties to the transaction were both negroes. The state's testimony shows an unjustifiable killing, and is sufficient to show that it was done upon malice. The appellant defended on the theory that the deceased had carried his daughter away from home as he believed for immoral purposes, the testimony tending strongly to show that the daughter of appellant was of rather weak mind. The state's testimony showed that after taking the daughter of appellant away from her home the deceased had married her, but the appellant disclaimed knowledge of said marriage, and on the contrary testified that he did not believe that they had been married at the time of the killing. The state introduced in evidence the witness Jerry Shorter, who testified that he told appellant prior to the killing that deceased and his daughter had married, and also gave in evidence other facts which impinged upon the theory offered by the appellant which, if true, might have reduced the killing to manslaughter.
In his motion for new trial, appellant shows by the affidavit of himself and that of each of his attorneys that after the evidence was closed and the jury had retired to consider their verdict he discovered for the first time that the witness Jerry Shorter was an ex-convict and unpardoned. The record shows that this information was unknown to the appellant or to his counsel at the time of the trial, and there is no suggestion in the record that appellant was lacking in diligence in discovering this matter earlier. As presented to this court, the record affirmatively shows that the witness was an unpardoned convict at the time his testimony was given in this case. Under this condition of the record we think the learned trial court should have granted a new trial. We find nothing in the record that was in any wise sufficient to put the appellant on notice that said witness was an ex-convict and nothing that would have required an inquiry into this matter on his part. The testimony given by this witness as above stated was in contradiction of appellant's theory of the case and was material in establishing the theory offered by the state. At the time of this trial an unpardoned convict was not permitted to testify against a party. We think that a new trial should have been granted. Hayes v. State (No. 9808) 279 S. W. 870, decided by this court March 3, 1926; Love v. State, 272 S. W. 778, 100 Tex. Cr. R. 211; Barber v. State, 223 S. W. 457, 87 Tex. Cr. R. 535.
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Stokes v. State, 27930
...weapons which were carried and used by the appellant on the occasions in question. Appellant relies upon two cases. In Hightower v. State, 103 Tex.Cr.R. 665, 281 S.W. 1063, the accused shot the deceased with a pistol in the City of Bryan. This Court held inadmissible the evidence of the she......
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Goss v. State
...or as to the pistol used, and we fail to see any relevancy in the testimony as to the number of pistols owned by him. High-tower v. State (Tex. Cr. App.) 281 S. W. 1063. In bill No. 10 complaint is made to the action of the court in permitting the state, over appellant's objection, to prove......