McDaniel v. State

• Decision Date: 21 December 1921
• Docket Number: (No. 6443.)
• Citation: 237 S.W. 292
• Parties: McDANIEL v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 292

McDANIEL v. STATE.

(No. 6443.)

Court of Criminal Appeals of Texas.

December 21, 1921.

Rehearing Denied January 25, 1922.

Appeal from District Court, Cass County; R. T. Wilkinson, Judge.

Alberta McDaniel was convicted of murder, and she appeals. Affirmed.

Lincoln & Smitha, of Texarkana, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for murder. Punishment 23 years in the penitentiary.

F. W. Albright, the sheriff, testified to a statement made to him by appellant. An attempt is made by bill of exception No. 2 to raise the question that she was under arrest at the time, and therefore the statement was not introduceable against her. The bill covers seven pages of the transcript, five pages being in question and answer form, and purporting to be the preliminary examination of the witness, from which it is to be ascertained whether accused was in fact under arrest when the statement was made. We have repeatedly held that bills in questions and answers were not in compliance with article 744, C. C. P., and article 2059, R. S. Article 744 refers to the Civil Statutes, and article 2059, R. S., reads:

"No particular form of words shall be required in a bill of exceptions; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain it, and no more, and the whole as briefly as possible."

See Vernon's C. C. P. page 537, note 21; No. 6407, Jetty v. State, 235 S. W. 589 (opinion November 30, 1921) No. 6447; Parker v. State, 238 S. W. 943 (opinion December 7, 1921); Hornsby v. State, 237 S. W. 940, and Johnson v. State, 239 S. W. ___ (both opinions December 14, 1921). In the Jetty Case, supra, this language was used:

"It may sometimes be necessary for the trial judge to direct the incorporation of questions and answers for the aid of this court, but in the first instance they should not be presented in this form."

Bills of exceptions Nos. 6, 14, and 15 are in the same condition as bill No. 2, and these bills for the reasons stated will not be considered.

We are unable to agree with the contention that the corpus delicti is not sufficiently proven. Deceased's son testified that his mother told him appellant shot her. The shooting is admitted by appellant. Deceased's entire lower jaw was shot away. Her husband testified that she was dead. The local doctors said they looked upon the wound as fatal; that while they could not say it was necessarily fatal, three out of four so wounded die. Deceased was suffering with no illness at the time she was shot. She died nine days later. No issue of neglect or improper treatment was submitted to the jury, and no complaint made of its omission.

The trial court did not submit the issue of self-defense, to which exception was reserved (bill No. 7), and appellant presented a special charge on that subject (bill No. 12), which the court refused. This necessarily brings in review the evidence to determine whether the issue was raised. Bill No. 8 is an exception to the charge because it "did not submit to the jury the issue of communicated threats and previous difficulties, along with the issue of self-defense." An examination of the objections to the court's charge filed during the trial makes no mention of "communicated threats" or "previous difficulties" as relating to self-defense, and this bill can only be considered incidentally in connection with Nos. 7 and 12.

Appellant and deceased were negro women, both married, and lived within about 100 yards of one another. Deceased, whether with reason or not, suspected her husband was paying some attention to appellant, and on various occasions attempted to make an assault upon appellant, and used abusive language towards her in regard to the matter. She had had trouble with various other women in the community about the same matter. It seems from the evidence that by some neighbors she was regarded as a little unbalanced on this subject. On the 24th of December, the day of the shooting, appellant passed by the home of the deceased late in the afternoon; and the only witness outside of appellant as to what occurred on that occasion, is John Allen, a boy about 13 years of age, and a son of the deceased. His testimony was, substantially: That appellant came by their house in a buggy, going towards her home; that his mother was out at the woodpile, and threw one stick of wood at Alberta, hitting the back of the buggy. He denies that his mother ever hit Alberta, and denies that his mother said to appellant: "That's all right. I will go in here and get my gun, and I will fix you." He also denies that he heard his mother tell appellant: "I have been threatening to kill you for a long time, and now I am going to do it." In a few minutes after appellant went on towards her house she came back, bringing a shotgun with her, went to the side of the house, and shot in the window. This witness only heard one shot, having run away from the house after the first shot was fired. He denied that his mother was on the porch at the time appellant came back, but claims she was inside the house. To determine whether the issue of self-defense was raised it will be necessary to look to the testimony of the appellant herself, and the statements that were introduced against her. The sheriff testified that, appellant told him prior to her arrest that about 4:30 on the afternoon of the killing she came back by deceased's house, and that deceased grabbed her horse by the bridle reins and hit her with a piece of pine; that she (appellant) then went on home, hitched her horse, and went in the house and got her shotgun and three shells. She said that she went back to Melissa's house, hollered for her to come out of there, and told her if she did not come out she would shoot her out; that she did not come out, and that she (appellant) went to the south room and shot the window pane out there, and heard deceased as she went to the north room; that she (appellant) then went around to the north room and shot a window pane out there, and still deceased did not come out; that she (appellant) stepped up on the gallery and kicked the middle door open, and that Melissa was in that room, that she saw Melissa turn around, and when she did that appellant shot her; that she also said: "If I had known I had not killed her I would have finished her before I left there." Appellant testified, reciting the various troubles that had occurred between herself and deceased about deceased's husband; about threats that had been communicated to her from deceased; about deceased's attempts to assault her with a gun, and with a stick on various occasions, and abusing and cursing her. With reference to the incidents immediately attending the killing, and a short time prior thereto, she testified as follows (We put the language in the first person as being more convenient, not intending it to be a literal copy from the statement of facts):

As I was going by Melissa's house she was standing in the house, peeping out of the window; she walked out into the yard to the woodpile; as I came by she grabbed my horse by the bridle and threatened to kill me; she hit me with some stove wood, and run me around the buggy; she turned around to go in the house and said: "You just wait until I go into the house; I will kill you; I am going to kill you before the sun goes down this evening." I went home, about 100 yards, got my gun, and came back to deceased's house. As I was going back to her house I was expecting her to kill me that evening; I just felt like that would happen, and I just went right on down there. She was standing out at the door, just on the porch, and just before I walked up she stepped back in the house and closed the door, and said: "Just come on; I am ready for you." When I got there I went on around the corner of the house, and as I was going around I saw her inside a window, and I shot; and after I shot I went around the house to the other corner; and as I come around I saw her again, and I shot; after I shot that time I was going back to go home out of the gate, and I heard a noise just before I walked out, and I looked back and the door was eeking in and I walked in the door, and I saw her as I walked in; she moved just as I walked in, and she was standing behind the facing of the other door, and just as I glimpsed her I shot. Yes; at the time that I made that first shot into the window I saw her inside there. The reason I shot that time was that I was expecting her to shoot me. I was looking for her to do it, and when I saw her I shot. The next time that I shot in the other window I saw her there; I shot in that window because I felt like she was trying to get a way to shoot me, because I knew she had a gun in the house. At the time that I shot I thought she was trying to get in position to shoot me. I would not have shot in there, and would not have gone back down there if I hadn't thought that my life was in danger—I knew my life was in danger. As to the condition of my mind after she made this attack on me: I don't know how I did feel; I was scared. I wasn't cool; I was excited. I felt like my life was in danger because she was so liable to come to my house and jump on me; I couldn't tell when she would come and shoot me dead. She had been raising these rackets and jumping on me for four years, and making these threats against me. I would not have shot if I had not believed that she was going to kill me.

On cross-examination appellant testified:

When I got around the corner of the house I saw Melissa; she moved, and I shot. I shot because I thought maybe she was trying to get to shoot me. Then I went around to the other end of the house. I saw her, and I shot through the window again. I started to go home out of the gate, and I heard a noise just before I walked out, and I looked back, and the door was open, and I saw her...