McAnear v. State

• Decision Date: 05 March 1902
• Parties: McANEAR v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W. 117

McANEAR v. STATE.

Court of Criminal Appeals of Texas.

March 5, 1902.

Appeal from district court, Red River county; Ben H. Denton, Judge.

Lee McAnear was convicted of murder in the second degree, and he appeals. Reversed.

Chambers, Doak & Kennedy and Johnson & Chambers, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

The following are substantially the facts adduced upon the trial: Appellant and his brother, Bob McAnear, were separately indicted for the murder of Earnest Hunter. The killing occurred on the 11th day of July, 1901, at deceased's home. Deceased was bookkeeper in the store of Hocker, Farris & Co., in the town of Clarksville. Appellant lived a short distance in the country, and his brother, Bob, lived in town. Appellant's mother and father were away from home on the day of the killing, and he had charge of the home, and the care of his sister, Lula McAnear. Appellant discovered a letter addressed to his sister, written on the letter-head of Hocker, Farris & Co., in his sister's bureau drawer, and, upon reading the same, found its contents indicated, or tended to indicate, undue intimacy on the part of some one with his sister, as said letter contained protestations of love, and referred to the love as an "unholy love." The letter was not signed. The general tenor of the letter convinced appellant that a married man had written it. Several married men worked in the store of the firm named. A short while after reading this letter, one night appellant missed his sister from the house, and, after searching for her, failed to find her. On the next morning he approached his sister and upbraided her for her conduct, and begged her to tell him where she had been, and who was the author of the anonymous letter that he had read. She refused. Subsequent to this time, deceased, appellant, and his brother, all being on friendly terms, met in a saloon, and drank together. Afterwards appellant informed his brother of the letter, and the improper absence of his sister on the night mentioned. Thereupon the two brothers decided to try to ferret out the author of the anonymous letter, and who it was his sister was absent from home with. On the day of the killing, appellant went into the store of the firm named, and discovered deceased talking with his sister. This, with the foregoing circumstances, aroused his suspicions, and led him to more strongly believe that deceased was the author of the letter. Prior to this, deceased had clandestinely taken appellant's sister from home, ostensibly to go to church, but they never arrived at church. This was at night. Appellant knew nothing of this until after the homicide, so far as this record shows. On the evening of the homicide, deceased invited appellant and his brother to go home with him; deceased living seven or eight blocks south of the square in Clarksville. When they arrived there, deceased entered the house, followed by appellant and brother, picked up the feather bed and cover, remarked as he did so that it was too hot to sleep in the house, and dragged the same out on the gallery. As they reached the gallery, appellant said to deceased, just as he was making the bed on the porch: "Earnest, we did not come here to stay all night. You need not fix the bed. We have reason to believe that you are the party that has been writing to our sister, and who stayed with her all of Tuesday night." To which deceased replied, as he was straightening up from having placed the bed down, "Yes, by God! it was me, if you want to know the truth about it!" and, in his stooping position, turned his side in a threatening gesture, as if he was going to fight appellant. Appellant fired five shots at deceased, and his brother began shooting at the same time. Appellant testified that he shot deceased because he had ruined his sister, and because he thought he was going to fight him; that he knew deceased went armed, and thought he was armed at that time. Appellant further stated that he did not know for sure that deceased was the party who had been with his sister on that Tuesday night, until he said he had; and, the moment he said it, appellant began firing. Appellant stated he had no positive proof until deceased admitted his improper conduct, and that appellant went to deceased's home for the purpose of finding out whether or not he did have undue intimacy with his sister; but, if deceased had stated he was not the guilty party, appellant would not have hurt him. There are other circumstances in the record, but we do not think it necessary to detail them in order to make clear the questions to be discussed.

Appellant contends that the court erred in refusing to consolidate appellant's case with his brother's, both growing out of the same transaction. The court did not err in refusing to do this. The mere fact that, as appellant insists, there may be a statute requiring the district attorney to charge but one fee where parties can be jointly indicted, does not require appellant and his brother to be jointly tried. They could be separately or jointly indicted, and, whether separately or jointly indicted, a severance could be asked by proper affidavit under the statute.

Appellant complains that the court erred in refusing to permit a state's witness to answer the question, on cross-examination by appellant, as to whether or not he had a conversation in Hocker, Farris & Co.'s store, in the town of Clarksville, a short time before the killing, with the deceased, in which deceased stated to witness that he (deceased), being a married man, had a better chance or show with young girls than young men, for the purpose of being intimate with them; that "young ladies would not suspect him from the fact that he was a married man." Appellant insists this question was asked in order to impeach the said witness, and, if permitted to do so, he could have proved that said witness would have denied making the statement, and appellant could have proved by A. J. Farris that deceased did make said remark to witness. The witness Lane's testimony for the state is material, and, if appellant could have contradicted him on the statement indicated, it would have been proper to impeach him in the manner attempted by appellant. The witness Lane had testified substantially that he had never heard deceased say anything that tended to reflect upon Lula McAnear. Now, this testimony, in view of the last statement, would be proper in order to impeach him. Furthermore, this would be admissible as original testimony.

Appellant insists the court erred in permitting the state to prove by Tom Craig that about two years before the homicide, appellant's brother, Bob McAnear, and deceased had a fight in a saloon in Clarksville. The bill presenting this matter states that appellant objected to this testimony "because the witness stated that defendant was not present at the time, and that the state had not shown, and did not show, that defendant knew anything about any difficulty between deceased and Bob McAnear, the brother of defendant." These are merely appellant's objections to the testimony, and not a certificate by the trial court that said facts are true. If appellant, as a matter of fact, was not present, and the circumstances are not such as indicate that he knew of the difficulty, and, adopting such knowledge, acted upon the animus that might have moved his brother, Bob...