McCorquodale v. State

• Decision Date: 20 December 1905
• Citation: 98 S.W. 879
• Parties: McCORQUODALE v. STATE.
• Court: Texas Court of Criminal Appeals

98 S.W. 879

McCORQUODALE v. STATE.

Court of Criminal Appeals of Texas.

December 20, 1905.

On Rehearing, November 21, 1906.

Dissenting Opinion, December 19, 1906.

Appeal from District Court, Brazos County; J. C. Scott, Judge.

William McCorquodale was convicted of murder in the first degree, and he appeals. Judgment of conviction reformed and corrected, and affirmed.

A. G. Board, Doremus & Butler, J. G. Minkert, T. S. Henderson, E. T. Brand, and Brockman & Kahn, for appellant. W. E. Spell, Lamar Bethea, V. B. Hudson, and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was assessed a life term imprisonment in the penitentiary, under conviction of murder in the first degree.

Bill of exceptions No. 1 complains of the action of the court refusing to postpone the selection of the jury until certain named jurors could be attached and brought into court. The court says in explanation: "The court heard the evidence of the sheriff as to where the said jurors resided, and ascertained they lived from 8 to 20 miles from the courthouse. Instanter attachments for said jurors were issued, and the motion overruled. Before defendant was required to pass on any talesmen all of said jurors, with the exception of one or two, were brought into court, and after the jury were finally impaneled defendant had not exhausted his challenges." There was no error in this. It has been frequently decided.

Another bill complains that the juror McSwain had been tested as to his qualification, and accepted by the state, and before the defendant passed upon him he called attention to the fact that they had not inquired of him as to whether or not he had conscientious scruples in regard to inflicting the death penalty. Upon inquiry the juror stated he had, and the state then challenged him for cause. This was not error. He could not be considered a juror in the case until he had been accepted by both parties and sworn. Nor is there any merit in the contention that because the state had accepted the juror McGhee, who had replied he had no conscientious scruples, therefore the state waived that question as to McSwain. This did not take away from the state the right to challenge McSwain for that reason.

The theory of the state was that deceased and defendant were rivals for the attention and carnal favors of the negro woman, Ida McGrew, and that appellant shot deceased, Spell, on account of jealousy growing out of this relation. In this connection, the state asked this witness (Ida McGrew) the question "if the defendant ever tried to induce her to leave the house in which she was then living, and for which deceased was paying rent, and if he made any threats against her in the event she failed to do so." Exception was reserved, because of its irrelevancy, and because it would serve to inflame the minds of the jury and prejudice them against him. This being overruled, witness answered that defendant did try to get her to leave said house, stating, if she did not leave it, he would burn up everything she had. This was not error. The evidence shows that appellant and deceased had been keeping the woman, Ida McGrew. She seems to have been alternating between them to some extent, and the deceased had finally obtained the better of the race in the rivalry. This seemed to have very greatly enraged appellant. Deceased, by the answer of the witness, is shown to have been paying the rent on the house in which she was living. This was a circumstance that was introducible, bearing upon the question of the feelings of appellant towards the deceased, and tended to show the motive for the homicide.

Omitting the dying declaration of deceased, this was a case of circumstantial evidence. Several letters written by appellant to the negro woman were introduced in evidence. Various objections were urged to this testimony. We think the letters were admissible for the same reason that was the testimony just mentioned. They were of a love-sick nature, and showed intimate relations had existed between appellant and the woman, and also referred to deceased, in two or three of them, in terms more or less threatening. For instance, the first introduced, is dated: "Bryan, Texas, Sept. 26th, 1904. Ida: Henry Spell, the cowardly puppy, have got them notes I wrote you, taking them around showing them. A man that is that low-down is sorrier than the worst negro in town. Now you give the pup this note. I want him to see it. He can't face a white man; he is so sorry. Mc." Another letter, dated June 29th, had this reference to deceased: "I want to talk with you, and I want you to let me out or Henry Spell one, for I want to see you every night myself, and I don't want to come without you telling me. You need not be afraid of him. He knows better than to harm you." In another letter he says: "Ida: Now, if you will turn that fool loose, I will give you more than he makes. He ain't worth a damn, and I will fix you up. I said a heap to you, but it was because I loved you so hard." It is not necessary to repeat the contents of the letters, and the above letters and extracts are copied simply to show that deceased was connected in the mind of appellant with the woman, and of the enmity engendered by reason of the relations existing between the parties. These were clearly introducible to show the state of appellant's mind towards the deceased, and as bearing upon the motive that he may have had to perpetrate the homicide.

Cam Jones testified for appellant, and was asked "if deceased, Henry Spell, had ever sent any message by him to Zack Franklin, in regard to the woman, Ida McGrew." The evidence had shown that deceased was killed while at the house of Ida McGrew, and that the woman was the paramour of both the deceased and defendant. The state's theory is that defendant and deceased were rivals for her affections and carnal favors. The bill shows that the state objected to the question asked of the witness, because it was immaterial and irrelevant. Objection being sustained, it is stated the witness would have answered, had he been permitted, that deceased had told him to tell said Franklin, that, if he (Franklin) did not cease his visits to Ida McGrew, he (Spell) would kill him, and that this was shortly prior to the homicide. The purpose stated was to show that other parties than appellant were in the habit of visiting at the house of Ida McGrew, and that other parties than appellant had a motive for killing deceased. Sometimes this character of evidence becomes material and admissible. Such has been the rule since Dubose v. State, 10 Tex. App. 230. The rule in regard to this may be thus stated: That investigations with reference to other parties than the accused would not be permitted, unless the inculpatory facts are such as proximately connect the party not on trial with the transaction. In other words, if a party other than the accused had the motive and opportunity, and was placed in such proximity to the homicide as to show he may have been the guilty party, the evidence may have been introducible; but remote acts and threats would not be, unless other facts in closer proximity and pertinently connecting the third party with the homicide at the time of the commission of the offense were shown. The mere fact that deceased may have had animus is not sufficient. The mere fact that deceased had threatened to kill other parties is not sufficient to admit it, unless there are other facts to show that the third party may have been placed in such position that he may have committed the homicide. This bill does not bring it within the rule.

The dying declarations of deceased were admitted. It is contended that the predicate is not sufficient. Cole Spell, brother of deceased, directly after the shooting, went to where his brother was, had a short talk with him, went down in town, and undertook to arrest defendant, who refused to be arrested by him, because he had no warrant. He returned to the bedside of his brother, and had a conversation with him. Before this conversation, deceased asked that all the parties be sent out of the room. This was done. Deceased said to his brother: "I know I am not going to get well, and I want to tell you who did it." He was perfectly rational at the time. The witness Mitchell (justice of the peace) says he arrived at the place where deceased was after being shot; that he went into the room, and deceased recognized him. He was suffering from a gunshot wound in the back, which came out in front, near the nipple. He says he did not hear the doctors explain or tell deceased of the seriousness of the wound. His testimony shows that deceased was of sound mind. He would talk a little, and then would stop. This witness said he thought from the first that the wound was fatal. "I asked the doctors if there was any chance for recovery, and the doctor said there was little. I then said I thought it was my duty to take a dying statement. I then asked Tom Spell (a brother of deceased) to ask deceased if he would make a statement. He came and informed me that his brother (Henry Spell) would make a statement to me. I then went into the room where he was lying on the bed. I then asked deceased if he realized he was in a dying condition, and he replied, `I do.' I then said, `In all probability would not recover?' and he said, `I do.' I then asked him if he knew who shot him. This was about 9 o'clock. Nagle, the county attorney, reached deceased after Mitchell took the statement. I did not know what formality Mitchell had gone through in taking the dying declaration. I went in the room where deceased was lying, and asked `How are you?' And the doctor asked him if he knew me, and he said, `It is Mr. Nagle.' I said, `Henry, do you think you are going to die?' And he said, `I have not given up all hope,' and said, `I don't see why I should not recover.' I had spoken to him several times as to his condition, so as to lay the predicate for...