Keith v. State

• Decision Date: 16 May 1906
• Citation: 94 S.W. 1044
• Parties: KEITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1044

94 S.W. 1044

KEITH v. STATE.

Court of Criminal Appeals of Texas.

May 16, 1906.

Appeal from District Court, Eastland County; J. H. Calhoun, Judge.

Paul Keith was convicted of murder, and he appeals. Reversed and remanded.

Scott & Brelsford and Monta J. Moore, for appellant. W. J. Cunningham, Dist. Atty. and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is a conviction of murder in the first degree, the punishment being fixed at confinement in the penitentiary for life.

Appellant and deceased were brothers-in-law, and had never met prior to a few minutes before the killing. On the morning of the homicide, appellant went to the residence of deceased, (his brother-in-law) for the purpose of talking with him about the treatment by deceased of his mother-in-law (who was appellant's mother) and for the purpose of getting him to desist such treatment, and permit her to visit his sister, wife of deceased. There had been considerable trouble between deceased and his wife. The evidence shows that when appellant reached the residence, and after being introduced to deceased, they sat awhile conversing on the gallery. Appellant mentioned his mission; that he had come there, not for the purpose of talking with him about his family troubles, but to talk with him in a quiet and friendly way about his treatment of his, appellant's, mother. As soon as this statement was made deceased got up from his position, where he was sitting on a cot, and started in the direction of appellant, with his right hand reaching towards his pocket, where he had a knife, remarking, "If that is your game, I will kill you," accompanying the expression with an oath. Appellant told him to stand back; he did not want to hurt him; did not want any trouble with him; not to come on him. Deceased continued to come until he came to close quarters. Four shots were fired, and deceased was killed. Some of the shots were sufficiently close to powder-burn deceased. Deceased was a man weighing 165 to 175 pounds, and defendant about 125 pounds. Deceased was a resident of Galveston, and had gone into Stephens and Eastland counties to visit his father, mother, brothers, and sisters, and for the further purpose of recuperating from an accident, in which he had broken his collar bone near the shoulder, and before it had entirely healed, by lifting some heavy weight, broke it again. This rendered his left arm practically unfit for use, and it had just been taken out of plaster of paris a day or two before the tragedy. When the case was called for trial motion to place Mrs. Grantham (wife of deceased) on trial first was overruled. The prosecution against her was dismissed. Under the view we take of this record, we deem it unnecessary to discuss that question. Nor will the action of the court refusing a continuance be discussed.

Error is assigned upon the ruling of the court during the impanelment of the jury. There is only one phase of this we desire to notice, as the other phase cannot arise upon another trial. The question we desire to notice is this: After exhausting the special venire drawn, the court instructed the sheriff to summon as talesmen something over 100 jurors. This order of the court was executed by the sheriff. This is clearly error. Acts 29th Leg. p. 17, c. 14, provides that, after the exhaustion of the special venire, in the manner therein provided, an additional venire, if necessary, shall be drawn from the list selected by the jury commissioners. The authority heretofore existing for the sheriff to summon talesmen under the direction of the court is repealed by this act, and the only method now by which special venires can be obtained is by drawing those jurors who have been provided by the terms of the act of the 29th Legislature. There is no authority under our law, as it now exists, which would authorize the sheriff to summon talesmen in capital cases, except as selected by the jury commissioners and drawn by the clerk under the direction of the court. This is such error as requires a reversal of the judgment.

The state was permitted, over appellant's objection, to introduce evidence that deceased's reputation was that of a quiet and peaceable citizen, and not a dangerous man. Appellant did not put in evidence the reputation of deceased. This question was raised by several bills of exception, and we deem it unnecessary to review all of them. In cases of this character, the state cannot introduce evidence of the reputation of deceased as being good and law abiding, or inoffensive, unless that reputation has been attacked by the accused. Gregory v. State (just decided) 94 S. W. 1041 which collates the authorities.

Dr. Boon was permitted to testify that, as county physician of Eastland county, he had, at the instance of the court, visited Mrs. Grantham, while confined in the county jail of Eastland county, and also after she had given bond and gone to Stephens county during the present term of the court, with the view of ascertaining the physical condition of Mrs. Grantham; that he found her in a nervous condition. He was then asked by the prosecution if he at any time considered her a sick woman, to which witness answered that he had not, and further testified that he did not consider her sick. Many objections were urged to this testimony which we think are well taken. Mrs. Grantham so testified, but we do not understand what relevancy it could have had upon the case that at the time of the trial she was or was not sick or...