Hodge v. State

• Decision Date: 26 October 1910
• Citation: 131 S.W. 577
• Parties: HODGE v. STATE.
• Court: Texas Court of Criminal Appeals

131 S.W. 577

HODGE v. STATE.

Court of Criminal Appeals of Texas.

October 26, 1910.

Appeal from District Court, Harrison County; W. C. Buford, Judge.

Pleas Hodge was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Beard & Davidson and George L. Huffman, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for murder in the second degree with an assessed penalty of five years in the penitentiary.

The deceased, Jethro Murphy, lived in a state of adultery with Addie May Harris, and they occupied the same room. There is evidence going to show that there were illicit relations between appellant and Lula Hunter, a sister of Addie May Harris. Appellant visited the house of the deceased Monday night and Tuesday night previous to the homicide on Wednesday night. Addie May Harris testified for the state, in substance, that appellant on the night of the homicide had been at the residence of herself and the deceased a short time, and that after his arrival Andrew Fisher, Martha McKnight, and Mable Thomas came. There was some whisky at the house, and all the parties drank. None of them, however, were drunk except Andrew Fisher, and he had been drinking considerably before his arrival. Martha McKnight and Mable Thomas did not remain long. During the evening deceased played on a guitar, and some one of the crowd challenged Andrew Fisher to dance. He declined, and there is some evidence indicating he put it upon the ground that he was too drunk or some one of the crowd said that he was too drunk. After remaining a while, Andrew Fisher suggested to appellant that he was going and wanted appellant to go with him. Appellant suggested that if he would wait a moment he would go. Addie May Harris states that at that time she was sitting on the bed, and appellant came up behind her, or was standing behind her, and from this point shot over her shoulder or head at deceased, who was sitting on the trunk near a dresser; that she saw the pistol and turned to appellant, who grabbed her around the neck but turned her loose because Andrew Fisher at this time ran back in the room. The indications were that Andrew Fisher at the time the pistol fired ran out of the house. Addie May Harris further testifies that when Andrew Fisher came back into the room appellant was choking her; that appellant then turned her loose and went away. Appellant concedes that he had been to the residence of the deceased on Monday night as well as Tuesday night, and that he had an understanding with the deceased to return to his house on Wednesday night for the purpose of trading pistols with him, and for this purpose he had carried his pistol to the home of deceased. It is shown that the deceased had a pistol, and that it was lying on the floor under a piece of furniture near where deceased was sitting. Appellant further shows that, just as he got ready to leave, his pistol being loosely belted around him, the weight of it having pulled it down, he unbuckled the belt and pulled it up so as to readjust and rebuckle it so that it would be convenient for him to carry, and that, when he unbuckled the belt, it slipped out of his hand, and the belt, scabbard, and pistol all fell to the floor; that by reason of this fall to the floor the pistol was discharged, the shot taking effect in the body of the deceased and causing his death. The effect of this evidence is that the discharge of the pistol was purely accidental. He denied shooting the deceased intentionally, and also denied having pulled the pistol out of the scabbard. Just immediately after the shooting, he testifies that he went to the room of a witness who lived near by the home of the deceased, and in answer to questions from that witness stated that the pistol had fallen on the floor, was thereby discharged, and he was afraid he had killed deceased. This witness corroborates the appellant in this statement. Appellant further shows that he was friendly with deceased, and testified that he had no purpose or intention of killing him, and that he did not shoot at him.

In this connection the state introduced evidence, through Addie May Harris, to the effect that appellant was out of humor with herself and the deceased, giving as a reason that his sweetheart, Lula Hunter, had been at the home of deceased and Addie May Harris at their instigation, and that she had been brought there by them for the purpose of prostituting her body to other men. Appellant denied any conversation of this sort, and also denied that there had been any illicit relations between himself and Lula Hunter. Also, in this connection, Addie May Harris testified that when appellant came to their house on Wednesday night he had a pistol belted around his waist, pulled it out, and told the deceased that he came for the purpose of wearing the pistol out over the head of Addie May Harris and having a settlement with him; that he then had his pistol in his hand and so held it until he finished talking to the deceased. He then laid the pistol in a chair, where it remained until Mable Thomas and Martha McKnight came. When they entered the room, this witness testifies, appellant picked up the pistol and put it in the scabbard so that Mable Thomas could occupy the chair; that after a few moments he again took his pistol from the scabbard and said to the witness, "You know one thing, I came down here to have a settlement with Murphy and to wear this out over Adeline." He repeated this remark, but only used this expression once in the presence and hearing of Mable Thomas. When Mable Thomas heard his remark, she replied, "You ain't going to do anything of the kind, because I am her auntie." This is the state's evidence, which is denied by witnesses for appellant. Addie May Harris was asked the following question: "Q. I want to ask you if it isn't a fact that, instead of Pleas Hodge...