Latham v. State

• Decision Date: 11 November 1914
• Docket Number: (No. 3293.)
• Citation: 172 S.W. 797
• Parties: LATHAM v. STATE.
• Court: Texas Court of Criminal Appeals

172 S.W. 797

LATHAM v. STATE.

(No. 3293.)

Court of Criminal Appeals of Texas.

November 11, 1914.

On Motion for Rehearing, December 16, 1914.

Concurring Opinion, December 23, 1914.

State's Rehearing Denied January 27, 1915.

Appeal from District Court, Jones County; J. B. Thomas, Judge.

Minnie Latham was convicted of manslaughter, and she appeals. Reversed and remanded.

Wright, Wynn & Harris, of San Angelo, Snodgrass, Dibrell & Snodgrass, of Coleman, Cunningham & Oliver and Will S. Payne, all of Abilene, and Brooks & Brooks, of Anson, for appellant. Jas. P. Stinson, Dist. Atty., of Anson, Higgins & Hamilton, of Snyder, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Upon an indictment and trial for murder, appellant was convicted of manslaughter, with the highest punishment assessed. This case has been before us heretofore on habeas corpus and is reported in 164 S. W. 377.

Appellant was a married woman 32 years old. She had been married more than 13 years, and had a son about 12 years old. Deceased, John Stewart, was a young unmarried man about four years younger than appellant. She, with her husband and child, had lived at their home in Sterling City, Tex., for several years prior to 1913. She was engaged in the millinery and tailoring business, and her husband was clerk for a lumber company. Their places of business were a block or two apart. Deceased also lived in Sterling City from the latter part of 1911 to about April, 1913. She and deceased became acquainted in 1911. Soon thereafter he became a very frequent visitor to her at her place of business, when her husband was not there. Deceased, it seems, became much attached to her and loved her, so he told her. She reciprocated his love. The evidence clearly justifies the conclusion, although denied by her, that this relationship ripened into illicit intercourse between them. He visited her at her home at nights when her husband was away and she alone. By mutual engagement about the 1st of April, 1913, deceased met her out at her barn one night while her husband was at home. Her husband detected them together at the barn and accused her of infidelity to him and sexual intimacy with deceased. At her solicitation, as well as for his own safety, deceased thereupon removed from Sterling City to Snyder, in Scurry county, where his widowed mother and other members of the family then resided, and thereafter continued to reside at Snyder. Her husband's discovery and accusations resulted in her leaving her home in Sterling City and going to her sister's in Teague, Freestone county, Tex., early in April. While at Teague she wrote deceased some letters which tended strongly to show her attachment for him and their previous illicit intercourse. She was away from her home and with her sister at Teague only about a week. While there her husband went on some business from Sterling City to Beaumont, Tex., and while away wired her to meet him at Temple and go back home with him, which she did. She protested all the time her innocence to her husband of any illicit relationship with the deceased, and they continued to live together from that time to the time she killed the deceased on January 20, 1914; she claiming that from time to time during this time her husband treated her well and at other times very badly because of his discovery and his charges of infidelity against her. While at Teague she received letters from the deceased. Upon leaving Teague she requested her sister to write deceased and procure the return to her sister, from deceased the compromising letters she had written to him. For some reason deceased failed or refused to return the letters, but kept them. About two weeks after her return home with her husband, on April 26, 1913, she wrote deceased, telling him that she did not care for him; that she hated him; that he had wrecked her home and caused her to lose the affection and confidence of her husband, and denouncing deceased. On May 9th following, she wrote deceased another letter, telling him she regretted writing him, as she had in the one of April 26th, and requesting an interview with him soon, and requesting a reply to be addressed to her sister, which she would procure.

The state introduced evidence tending strongly to show, though denied by her, that appellant and her husband went from Sterling City to Snyder in their automobile in July, 1913, heavily loaded with firearms, to kill the deceased at that time. The state also introduced much evidence showing the movements of appellant and her husband from about January 6, 1914, in their automobile, again heavily loaded with firearms, which tended strongly to show that it was the intention of one or the other or both of them to then hunt down the deceased and kill him. Their movements were shown from about January 6, 1914, when they traveled from Ft. Worth in their automobile to her husband's brother's, in Dickens county, and thence from Dickens county down to Snyder, showing: That on the evening of January 19th they reached a point near Snyder some time in the evening and waited there till after dark before going into Snyder. That while thus waiting she inquired for deceased from some citizen who passed her, indicating clearly that she was then seeking information if deceased was at Snyder. That after dark they went from their stopping place several miles from Snyder direct into Snyder in their automobile. She said that as she drove into Snyder she thought she saw deceased. They drove on around in the automobile until they got near the residence of deceased's mother, when she got out, carrying with her her savage automatic pistol which carried nine steel cartridges, which she continuously thereafter carried concealed about her person. That at the time she got out of the automobile she had an understanding with her husband that she would meet him the next day at Roscoe, a station reached on one of the railroads from Snyder, and that her husband went there and waited for that purpose. Soon after she got out of the automobile she walked some block or two to the Maxwell Hotel in Snyder, kept by Mr. J. V. White, where she registered in the hotel register as "Mrs. C. C. Evert, Ft. Worth," and was assigned to room 22 by Mr. White. She is shown to have gone from that hotel that night, soon after she registered, out into the town, and at a point where it is evident, from all the testimony, she anticipated she would meet the deceased, but did not do so. It is unnecessary to detail all this evidence, which tends so strongly to show that she was hunting for the deceased with the evident purpose of killing him upon sight, as she was not convicted of murder but of manslaughter. She is also shown, the next day, to have gone out in the town with a veil over her face and with a rainproof coat on which would prevent her from being recognized by one who knew her, still evidently on the hunt for deceased. She is also shown to have been out in front of the hotel a great deal of the time when she was not perambulating the streets, evidently watching for the deceased. The evidence is conflicting whether she had a veil over her face while she was out in the town and at the time and immediately before she killed the deceased. The preponderance of the evidence would show that she thus went all the time and did not raise the veil from her face until at the very moment when she shot and killed the deceased. The killing occurred early in the evening of January 20, 1914. The hotel where she stopped was two doors east from the northeast corner of the public square. The post office is on the west side of a street, going north from the northwest corner of the public square. The north side of the public square is occupied by business houses fronting south. In front of these houses was an ordinary concrete sidewalk, about ten feet wide. Very shortly before she killed deceased, it was shown that she was sitting on the sidewalk in front of the hotel; that deceased went to the post office and returned therefrom to the northwest corner of the square and crossed the street at the corner from the west side to the east side in front of the First National Bank building, which was on that corner. Where deceased stepped up on the sidewalk in front of said bank was plainly in view and in one block and across one street, and two houses from where she was sitting. The evidence would clearly justify the conclusion that she saw and recognized deceased as he stepped up on the sidewalk in front of the bank. At this time she had the head of a little girl sitting by her side, in her lap. She hurriedly lifted the child from her lap, immediately got up, and started somewhat briskly down the sidewalk to the point where deceased was and where she killed him. She went immediately and directly from the hotel, as described above, without stopping, to where she killed the deceased. Many persons were on the sidewalk and about it from the northeast corner of the courthouse square to and beyond the bank building.

The evidence is contradictory as to whether the deceased had just reached the sidewalk and stepped upon it in front of the First National Bank when she reached that point and killed him, or whether he had been there some short time and had sat down on the sidewalk with his back towards the bank building and his face somewhat south towards the public square. She contended and testified, and others also, that she met him at this point with his face towards her; that he had his open pocketknife in his right hand; that he shifted it to his left hand, made a motion therewith towards her, and threw his right hand down towards his right side, where he then had his six-shooter. However, the preponderance of the evidence and the fatal shots which killed the deceased clearly justified the jury to believe that the deceased was sitting on the sidewalk with his back towards the bank, his face fronting south, and that she shot and...