Hobbs v. State

• Decision Date: 12 February 1908
• Citation: 112 S.W. 308
• Parties: HOBBS v. STATE.
• Court: Texas Court of Criminal Appeals

112 S.W. 308

HOBBS v. STATE.

Court of Criminal Appeals of Texas.

February 12, 1908.

On Rehearing, June 6, 1908.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Earl Hobbs was convicted of manslaughter, and appeals. Reversed and remanded.

Collins & Cummings and A. A. Hughes, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was charged by indictment with the murder of one Ed Kelly, alleged to have been committed on the 5th day of September, 1906, in Hill county, Tex. He was convicted of manslaughter, and his punishment assessed at four years' confinement in the penitentiary.

The facts, in brief, show that appellant, at the time of the homicide, was a young man slightly past 21 years of age, living with his young wife, and baby, a few months old, some four miles east of Itasca on a farm. The deceased was a man some 35 years or more, and was practically a stranger in the community. About a week before the homicide he had been hired by appellant, along with O. Leggett, who was also a stranger, to pick cotton. On the day before the homicide appellant went to Itasca, a town near by, on business, leaving the deceased and Leggett at his home with his wife and child. Shortly after he had left home Leggett left also, leaving deceased and appellant's wife at the house. It is claimed by the wife of appellant that the deceased was guilty of gross indignities in the absence of her husband, going to the extent of seizing her in his arms and importuning her to have carnal intercourse with him. Defendant's wife made no report to him of the matter that night on his return, but in view of his announcement of his purpose to go to Itasca again the next morning she remonstrated with him and begged him not to go and leave her with that man (meaning deceased), and in reply to his demand to know why she was afraid of deceased, she stated to him a portion of the insulting conversation with the deceased leading up to his seizure of her, but did not make a full disclosure, for the reason, as stated by her, that this would cause great trouble and sorrow, through which she was now passing. However, in view of what his wife already told him, appellant at once discharged deceased, and told him that if he would go into town he would get the money he owed him and pay him for his services. This deceased declined to do, and it was stated he would not wait for his money, and immediately left appellant's house, going in an easterly direction. Appellant went on to Itasca, which was situated in a westerly direction from where he lived, and while there purchased a double-barreled shotgun and some ammunition. While in Itasca he made some inquiry as to what one should do or ought to do to a man who had insulted his wife. Appellant was accompanied home by Watson, his cousin, and Leggett, his employé. When he reached there, as he states, he went to his wife, and told her that he did not believe that she had told him all that had occurred the day before. Whereupon she broke down, as he says, and through her tears made a full disclosure of all that had occurred, involving the most reprehensible conduct on the part of the deceased. On receiving this information, appellant went out of the house, mounted a horse that belonged to his cousin, Watson, and galloped off in the direction the deceased had gone some hours before, with the purpose, as he declares, of requiring deceased to explain his conduct. He soon found deceased picking cotton in the field of one Morris, and, while the testimony is not wholly in agreement, the substantial facts seem to be that, without parley, and probably without warrant, shot the deceased in the field in the cotton row where he was at work. Appellant, however, it should be stated, claims in his testimony that when he came upon deceased, with a view of making inquiry as to his conduct towards his wife, and demanding an explanation of same, that the deceased was looking straight at him and threw his hand behind him, and appellant thought he was going to draw a pistol. Leggett and Watson, the parties with appellant, were each separately indicted as a principal for the murder of deceased. While not intending to comprehend herein every essential fact of the case, the statement above substantially illustrates the situation far enough to make intelligible the issues discussed. There are three substantial questions raised on the appeal, which were discussed in oral argument and are clearly presented in the record:

1. It was shown, as stated, that Hence Watson and Oscar Leggett and the appellant were each separately indicted as principals for the murder of deceased. It was shown that at the January term, 1907, of the district court of Hill county, and on the 30th day of that month, appellant filed his motion in writing, which was duly sworn to, in which he alleges the pendency of said indictment against Watson and Leggett for the same offense, and that the evidence was insufficient to convict said Watson and Leggett, and that he desired their testimony, and prayed a severance to the end that these defendants be first tried. This motion was granted by the court, and an order entered that Watson be first tried, and that Leggett be next tried, and that both of them should be tried before appellant. It is further shown in the record that on the 8th of April, 1907, when this case was called for trial, neither Watson nor Leggett had been placed upon trial, nor had their cases been disposed of, but both cases were held pending on the docket. The record further shows that appellant filed an additional motion at that time calling the court's attention to the failure of the state to comply with the order of the court formerly made granting his motion to sever, and in said second motion renewed the former motion for severance, and again prayed the court to have said cases against Watson and Leggett first tried and finally disposed of before he should be placed upon trial. Thereupon the county attorney prepared a formal motion in the Watson and Leggett cases, asking an order of nolle pros. on the ground that the evidence was insufficient to sustain a conviction against them, and asking that said cases be dismissed. Whereupon the court entered upon the docket, opposite each of said cases, the following order: "April 8th. Nolle pros. by state for reasons on file." The record further shows that appellant, by his counsel, objected and protested to the proceedings so had in dismissing said Watson and Leggett cases, because such proceeding was not in compliance with the order of the court made, nor in accordance with appellant's motion to sever, and that said dismissal was not a trial or final disposition of the cases, and contended that they should have been tried or dismissed, with a guaranty of immunity from further prosecution, so that appellant could avail himself of the said Watson and Leggett as witnesses, and that he might have them free and untrammeled by any fear of a future prosecution. In this state of the record appellant was compelled to make an announcement of ready or not ready for trial. The record further shows that the state rested its case without having placed either Watson or Leggett upon the witness stand, at which stage of the proceedings appellant filed a motion, asking the court to require the state to place Watson and Leggett on the witness stand and prove by them the facts and circumstances immediately attending the homicide, in order that appellant might have the privilege of a cross-examination of said witnesses. This motion was overruled by the court, and neither Watson nor Leggett was introduced by either party, nor were they witnesses in the case at any stage of the proceedings.

Appellant claims that these proceedings were directly in the face of the holding in the case of Puryear v. State, 98 S. W. 258, 17 Tex. Ct. Rep. 721. To this contention we accede, and if the rule adopted in the Puryear Case should prevail we would not hesitate to reverse the case for the error here assigned. We do not believe, however, that the Puryear Case should be followed. We think the reasoning in that case is fallacious and unsound, the conclusion reached unsafe, and the result wholly mischievous. It is directly in the teeth of the decision of this court in the case of Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 131. It is, as we believe, at variance with the letter and spirit of our Code of Criminal Procedure. Articles 707, 708, and 709 are as follows:

"Art. 707. When two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are indicted for an offense growing out of the same transaction for which he is indicted, and that the evidence of such party or parties is material for the defense of the affiant, and that the affiant verily believes that there is not sufficient evidence against the party or parties whose evidence is desired to secure his or their conviction, such party or parties for whose evidence said affidavit is made shall first be tried; and in the event that two or more defendants make such affidavit and cannot agree as to their order of trial, then the presiding judge shall direct the order in which the defendants shall be tried; provided, that the making of such affidavit does not, without other sufficient cause, operate as a continuance to either party.

"Art. 708. When a severance is claimed the defendants may agree upon the order in which they are to be tried, but in case of their failure to agree the court shall direct the order of the trial.

"Art. 709. The attorney representing the state may at any time, under the rules provided in article 37 dismiss a prosecution as to one or more defendants jointly indicted with others, and the person so discharged may be introduced as a witness by either party."

It will thus be noted that...