Howard v. State
| Decision Date | 23 May 1962 |
| Docket Number | No. 34641,34641 |
| Citation | 172 Tex.Crim. 352,357 S.W.2d 403 |
| Court | Texas Court of Criminal Appeals |
| Parties | Bertha Lee HOWARD, Appellant, v. The STATE of Texas, Appellee. |
John Cutler, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for murder; the punishment, life imprisonment.
The evidence is undisputed that appellant killed the deceased by shooting him with a pistol, the homicide occurring at the appellant's home in the city of Houston.
When the officers arrived upon the scene after the shooting, the deceased's dead body was found in a sitting position on the living room floor, with a .22 calibre pistol in his right hand. Appellant, who was present at the scene, told the officers that she had shot the deceased and pointed the pistol out to them as the weapon she had used.
Following her arrest, appellant made and signed a voluntary written statement in which she admitted shooting the deceased with the pistol. The statement, omitting certain portions, which were offered by appellant, was introduced in evidence by the state.
In the statement, appellant stated that on the night in question she and the deceased had been out together, drinking beer; that after they returned to her home and were lying on the bed, the deceased began fussing about what she had been doing while he was gone; that he got up and asked her to walk out to the car with him; that she got up, put on her house coat, and, after securing a .22 calibre pistol from a dresser drawer, went to the car with him; that when they got outside the deceased 'kept on talking about what he was going to do to me' and asked her to get in the car, which she did; that while they were in the car 'Eddie [the deceased] acted like he was going to attack me,' and she pulled the pistol from her pocket and fired one shot. Appellant stated that after firing the shot the deceased took the pistol from her; that she then ran and crawled under a house next door and the deceased, after firing two or three shots at her, went into her house looking for her.
Testifying as a witness in her own behalf, appellant related how she and the deceased had been to several cafes together, drinking beer, on the night in question. She stated that after they returned to her home and she had partially undressed, the deceased began talking about what 'he was going to do to me,' which she understood to mean that he was going to commit an act of sodomy upon her, like he had done once before; that he asked her to go get in the car and she refused; that he then pulled her out of the house to the car; that she ran back inside the house, grabbed her 'duster' and secured the pistol from the dresser drawer; that as she started out of the house the deceased came to the front door and again pulled her to the car, and, after he forced her to get in the car and started backing it out of the driveway, she fired the pistol 'to stop him from doing what he said he was going to do to me.'
Appellant testified that on an occasion prior to the day of the killing, the deceased had taken her in his automobile to a certain place in the city and forcibly committed an act of sodomy upon her, by placing his privates in her rectum. Appellant stated that by such act of sodomy the deceased hurt and split her rectum. She further stated that on the night of the killing she believed that the deceased intended to again commit such an act upon her and that the reason she fired the pistol was to stop him from taking her away in his automobile and committing the act. Appellant denied any intention to kill the deceased.
The court submitted to the jury the issues of appellant's guilt of murder both with and without malice and of aggravated assault. The court also charged...
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Dickson v. State
...319 S.W.2d 720; Leonard v. State, 169 Tex.Cr.R. 147, 332 S.W.2d 562; Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43; Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d 403. In the case at bar, the appellant saw no weapon in the possession of the deceased. Just prior to the deceased being shot ......
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Shaw v. State
...See also Boyd v. State, 128 Tex.Cr.R. 539, 83 S.W.2d 326; Jamison v. State, 141 Tex.Cr.R. 349, 148 S.W.2d 405; Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d 403; Whitehead v. State, Tex.Cr.App., 450 S.W.2d 72; and Sias v. State, Tex.Cr.App., 495 S.W.2d Since the only defense relied upon by......
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Johnson v. State, 47243
...Booker v. State, 165 Tex.Cr.R. 44, 302 S.W.2d 431; Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43.' See also Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d 403 (1962); Montes v. State, 163 Tex.Cr.R. 416, 291 S.W.2d 733 (1956); and Mays v. State, 170 Tex.Cr.R. 293, 340 S.W.2d 43 (1960). The......
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Hill v. State, 46193
...attack unless the evidence shows that the deceased was making an actual attack upon her at the time of the homicide. In Howard v. State, 172 Tex.Cr.R. 352, 357 S.W.2d 403, the facts are very close to the evidence in this case. There the Court held that a charge on lesser attack was not requ......