Jennings v. State

• Citation: 132 S.W. 473
• Parties: JENNINGS v. STATE.
• Decision Date: 30 November 1910
• Court: Texas Court of Criminal Appeals

132 S.W. 473

JENNINGS v. STATE.

Court of Criminal Appeals of Texas.

November 30, 1910.

Appeal from District Court, Wheeler County; F. P. Greever, Judge.

John N. Jennings was convicted of second-degree murder, and he appeals. Reversed and remanded.

A. N. Lawrence and Marion Reynolds, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

The appellant was convicted of murder in the second degree; his punishment being assessed at 10 years' confinement in the penitentiary.

From the statement of facts we gather: That the deceased J. C. Colwell, resided close to the town of Shamrock, in Wheeler county, Tex. That he was a man of family. Domestic troubles sprang up between himself and wife, when she left him and took up her home with her father, Mr. Bowen. That deceased had two daughters, one about 17 and the other about 15 years of age. He lived out on a farm or ranch. His oldest daughter, after the separation, married a man by the name of Horn. The other daughter, a girl about 15 years of age, married the defendant in this case, John N. Jennings. The deceased was violently opposed to this marriage, and after an application was made sworn to before the county clerk by the defendant, his license to marry the daughter of deceased was granted. After his marriage, the deceased went before a justice of the peace and made an affidavit against the defendant charging him with both perjury and incest, in that the defendant was related to his daughter. The defendant was a first cousin of the wife of deceased, which made him second cousin to his own wife. The defendant was arrested on a warrant issued by the justice of the peace and gave bond. It seems from that time on bitterness sprang up between the defendant and deceased. The testimony discloses that the deceased made several threats against the life of defendant and swore that he should never live with his daughter and that he intended to separate them. He carried his gun wherever he went, and it seems that some of the neighbors tried to interfere and keep both the defendant and the deceased from going armed. On the day of the difficulty, which occurred in the town of Shamrock on the 17th day of February, 1910, the defendant was at work assisting in unloading a car of coal. The deceased, in company with a man by the name of Bradley, passed within 75 yards of where defendant was unloading the coal, walking, deceased leading a horse and strapped to the saddle of the horse was a Winchester rifle. The deceased went on into the town of Shamrock, defendant left his work, went to Bowen's house, where he was living, got a gun, and returned to town and went into the store of a man by the name of Griffin, sat down by the stove, and stayed there awhile; the day being quite cold. Directly he got up and went to the window at the front of the house, and, as deceased and Bradley stepped off of the gallery of the store across the street and had made a few steps toward the store in which defendant was, defendant fired and killed deceased, and also shot Bradley. The deceased, before the shooting, put his horse in a wagon yard and took the gun that was strapped to the saddle and carried it with him and had it in his hands at the time of the killing. After the shooting, there was also found a pistol on deceased's person. The defendant proved by the witness Davis that, after the deceased and Bradley passed by where the defendant was unloading the coal, he had occasion to go to a closet up close to the wagon yard where deceased had placed his horse. This closet had a couple of stalls. He went into one, and directly the deceased and Bradley went into the other stall, and he overheard a conversation between them, in which the deceased said to Bradley that he (Bradley) had better take his (deceased) pistol. Bradley remarked that it was not necessary and asked deceased if his cartridges were all right. The deceased replied, "Yes, my cartridges and gun are all right, and they will get Jennings." The witness said that he left this place and went and told defendant about it, and that defendant then went off to get a gun.

On the trial of the case, when Horn was upon the witness stand, he being the man who married deceased's oldest daughter, he testified in behalf of the defendant of the bitter objection of the deceased to the defendant and his bitter objection to defendant's marriage to deceased's daughter, and to threats that had been made by the deceased. Over the objections of the defendant, the state was permitted by the court to ask the witness if he (witness) had not stated to a man by the name of Neese that defendant had married deceased's daughter, and that the deceased would have to do some killing now, as the defendant would damn sure kill the deceased. He denied making this statement, and the state was permitted, over the protest and objection of the defendant, all of which is saved by proper bill of exception, to show that the witness did make that statement to him, giving the time and place. This was objected to on the ground that it was collateral, hearsay, involved the opinion of the witness, and defendant could not be found thereby. It is not necessary to write to any extent upon this subject. This character of testimony has been condemned so often by this court that we are at a loss to know why the state's counsel will insist upon the introduction of this kind...