Martin v. State

• Decision Date: 30 November 1921
• Docket Number: (No. 6416.)
• Citation: Martin v. State, 236 S.W. 729 (Tex. Crim. App. 1921)
• Parties: MARTIN v. STATE.
• Court: Texas Court of Criminal Appeals

236 S.W. 729

MARTIN v.STATE.

(No. 6416.)

Court of Criminal Appeals of Texas.

November 30, 1921.

Rehearing Denied February 1, 1922.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

James C. Martin was convicted of murder, and appeals.Affirmed.

G. R. Smith and W. R. Abernathy, both of McKinney, for appellant.

A. M. Wolford, Co. Atty., H. Grady Chandler, Asst. Co. Atty., and Truett & Neathery, all of McKinney, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for the murder of James Wiley Stockwell; punishment fixed at confinement in the penitentiary for a period of 20 years.

While on the street of McKinney, the county seat, in the evening, after dark, the deceased was shot and killed by the appellant.Three shots were fired.Only one took effect.The bullet entered the breast and penetrated the body, the point of exit being five or six inches below that of entry.The shirt front of the deceased was powder burnt.

From the evidence of the state, it appeared that on meeting the deceased appellant immediately drew his pistol and fired; that the deceased turned and ran a short distance and fell; that appellant pursued him; that the deceased stumbled and fell upon the sidewalk; that after or about the time he fell appellant fired two additional shots; that when the deceased fell he laid on his side.

No evidence of motive was introduced by the state in its opening testimony.The appellant introduced testimony to the effect that his sister, Mrs. Ritter, had been raped by the deceased upon the forenoon of the day on which the homicide took place; that after the assault the deceased threatened her life and that of her husband and of the appellant if she divulged his conduct; that later in the afternoon these facts were communicated by her to the appellant and her husband, Fred Ritter; that appellant, Ritter, and Ritter's brother-in-law, Bevil, came from their homes in the country to the county seat for the purpose of reporting the assault to the officers; that the meeting with the deceased took place without design; that appellant accosted him, when the deceased made a demonstration which the appellant interpreted as manifesting an intention to draw a weapon; that to protect his person appellant drew his pistol and fired, the distance between them at that time being about three or four feet.

According to appellant, after the first shot was fired, the deceased continued his apparent effort to draw a weapon, meanwhile backing away; that he came in contact with a lady, when deceased ran behind her, and appellant again fired; that the deceased, without withdrawing his hand from the position, dodged behind an automobile, impressing the appellant that in so doing he was making an effort to shield himself while he shot the appellant; following closely around the car, appellant pursued him; that deceased was retreating in the direction of a telephone post, and appellant, still regarding his life in danger, again fired just as the deceased was falling on the sidewalk; that no other shots were fired.

By cross-examination and the introduction of original evidence the appellant sought to support and the state sought to discredit both of the defensive theories advanced by the appellant.In the course of the cross-examination of appellant and his witnesses there was evidence adduced that appellant had been paying attention to a certain young lady.He denied that he knew the deceased was also addressing his attentions to her.Later the state introduced testimony to the effect that the deceased had been showing the young lady attention.The ruling of the trial court in admitting this testimony over appellant's objection is made the subject of complaint.It is insisted that, in the absence of evidence that the appellant knew of the deceased's attention to the young lady, proof of it would be irrelevant.Obviously his mind could not be moved to homicide by a matter which to him was unknown.Wharton on Homicide, § 596;Cockerell v. State, 32 Tex. Cr. R. 585, 25 S. W. 421.Jealousy or the cause for jealousy is uniformly regarded as admissible upon the issue of motive.Wharton on Homicide, § 600;Reeves v. State, 47 Tex. Cr. R. 340, 83 S. W. 803;2 Wharton's Crim. Evidence, § 903;Underhill on Crim. Evidence, § 323, p. 565;McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 879;Moore v. State, 52 Tex. Cr. R. 336, 107 S. W. 540.While knowledge, in the instant case, of the fact that the deceased was a suitor of the same woman to whom appellant's addresses were paid was essential to render the fact relevant, the law did not demand that knowledge be proved by direct testimony.It was susceptible to proof by circumstances.2 Wharton's Crim. Evidence, p. 903;Kunde v. State, 22 Tex. App. 95, 3 S. W. 325.

The fact that the appellant and the deceased each paid their attentions to the same young lady for a period of a month or more would, it seems, furnish some basis for the inference that these attentions were mutually known.Moreover, the dwelling place of the young lady in question was near that of appellant and his mother.She was a companion of appellant's sister.She but a few days prior to the homicide had been a guest at the home of the mother and of the deceased on the occasion of his birthday.The day before the homicide the deceased was at the home of appellant's mother to extend to the young lady an invitation to a party.While there appellant was sent for by his mother.Upon learning this the deceased showed uneasiness and manifested a desire to depart, expressing the fear that if he remained trouble would ensue.The town of McKinney was near the homes of all the parties, and was frequented by them for the purpose of trade and amusement.On the day of the homicide the appellant, his sister, Mrs. Ritter, and her husband, the deceased, and several young ladies of the neighborhood were together at the home of a neighbor.

The deceased was a youth of 18 years; appellant was 33 years of age.They were reared in the same vicinity, about three miles apart.The proximity of the homes and places of resort of the appellant and the members of his family and of the deceased and of the young lady to whom they were both paying attention, the intermingling of their mutual friends and relatives, in connection with the other facts to which we have adverted, occur to us as presenting a situation which, at least, raises an issue of fact, subject to the solution by the jury as to whether the appellant was aware that he and the deceased were paying attention to the same woman.That it was permissible for the state, by competent evidence, to establish as a fact that the appellant and the deceased were, within the knowledge of the appellant, suitors of the same girl, is clear.This testimony was pertinent to combat the theory of the appellant that the motive for the homicide was the claimed assault upon his sister, and was also relevant upon the issue of motive for the homicide which the state was privileged, though not bound, to prove.By the direct testimony, there was put into the case the fact that the attentions of both appellant and deceased were paid to the same girl.The circumstances to which we have adverted tend to prove that this was known to the appellant.Whether they were of sufficient weight was a question of fact, which we think it was not within the province of the court to decide.Upon request, it might have been incumbent upon him to instruct the jury in such a manner as to make them know that the evidence that the deceased was a suitor of the girl could not be considered unless appellant's knowledge of it was established.Such request was not made, and in its absence its submission was not required, and in fact the propriety of giving the instruction on his own motion would have been doubtful, for the reason that it would have singled out and given undue prominence to a particular fact.

It was not alone to the evidence concerning the attentions of the appellant and the deceased to the young lady that the jury might have looked in rejecting the defensive theories of the appellant.Ritter, the husband of appellant's sister, and Bevil, his brother-in-law, were charged as coprincipals of the appellant in the homicide, and were present when it took place.It is from their testimony and of appellant's sister, the wife of Ritter, that reliance is had to establish the misconduct of the deceased towards Mrs. Ritter.Upon the cross-examination of Mrs. Ritter, facts touching her conduct after the supposed rape were developed which the jury might have regarded as totally inconsistent with her declarations that the rape had taken place.The time that it occurred, the presence of and proximity to neighbors, who were within calling distance, the failure of Mrs. Ritter to disclose it to any save those charged with the homicide until after the death of the deceased, her opportunity to reveal it to her mother, her seeming unconstrained conduct in associating with friends and attending a gathering at the home of the neighbor...