Merritt v. State

• Decision Date: 16 March 1898
• Citation: 45 S.W. 21
• Parties: MERRITT v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 21

MERRITT v. STATE.

Court of Criminal Appeals of Texas.

March 16, 1898.

Appeal from district court, Parker county; J. W. Patterson, Judge.

J. W. Merritt was convicted of murder, and appeals. Reversed and remanded.

F. L. Hutcheson and Harry W. Kuteman, for appellant. W. W. Walling, R. B. Hood, Albert Stevenson, and Mann Trice, for the State.

HENDERSON, 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; hence this appeal.

In appellant's first bill of exceptions he complains that the court acted improperly in admitting the testimony of T. F. Harrison, to the effect that, just before the killing, Joe Brown was over with him on the platform at Millsap, and went from there over to the blacksmith shop, and in connection with his going, stated that he said he was going from there either to get some water or draw some water, witness was not certain which. The objection urged to this testimony was that the statement was made in the absence of the defendant. In our opinion what he said at the time of going over to the shop was a part of the res gestæ of that act, and was admissible. But, if it be conceded that it was not, we fail to see how its admission could injure the appellant. There is no pretense anywhere in the record that deceased was pursuing Merritt or seeking an encounter with him. Nor is there any pretense that he went over to said shop for any other than an innocent purpose.

We also believe that it was admissible to show on the re-examination of the witness Harrison by the state that he was opposed to mob law, and had always used his influence to prevent mobs. This was in rebuttal of the attempt to show by this witness, on his cross-examination by the defendant, that he was one of a party who had undertaken to get up a mob to mob the defendant.

We fail to see how it was admissible to prove by the witness McCall that defendant's wife, seven or eight years before the homicide, had made complaint before him as a justice of the peace, in which she charged her husband with making an assault on her. There was nothing in the case that rendered this testimony admissible, and it was of a character to prejudice appellant's case before the jury.

Under the peculiar circumstances of this case, in our opinion it was admissible to prove, on cross-examination by the state of the witness J. R. Hollified, "that he had never heard of defendant being insane until after the homicide." There was a great deal of testimony introduced by the defendant tending to show that appellant was insane, and that this insanity was of long standing. The witness Hollified was a near neighbor of the appellant, and it was competent to show by him that he had never heard of the defendant being insane until after the homicide, as tending to show on the part of the state that the defense relied on was of recent fabrication and origin.

By bills of exception numbers 8, 9, 11, 12, 13, and part of 15 appellant presents the question as to the competency of evidence to show that Joe Brown was regarded by the defendant as being at the head of a mob to kill him. This testimony was offered by appellant, in connection with other testimony from a number of witnesses, tending to show his insanity; that such insanity was in the shape of a delusion that a mob was after him to kill him, and that Joe Brown was at the head of the mob. It extended over a number of years, and these bills of exception show that proof was made on a number of occasions that appellant talked to them (witnesses) about a mob being after him, and on such occasions he became intensely excited and beside himself, and that they pronounced him insane on the subject of believing that a mob was seeking his life. In connection with their testimony as to his conversation about the mob being after him, and his conduct and condition on such occasions, it was offered to be proved by them that he stated that Joe Brown was at the head of the mob, and that he was at the bottom of the attempt to mob him. As a specimen of this character of testimony, we will quote from bill of exceptions No. 13 as follows: "While the witness Jasper N. Haney was on the stand, after he had testified that he had known defendant for several years, and that he had received a letter about two months before the homicide from defendant requesting him to send up a United States marshal, that he was about to be mobbed, and that four or five days after said letter was received defendant rushed into his (witness') law office, greatly excited, and stated a mob was after him, and that they were going to kill him (defendant), and asked for protection; and after said witness had testified that in his opinion defendant was not sane on the question of a mob, and that he would kill any one he fancied connected therewith, and would not know it was wrong, —counsel for defendant offered to prove by said witness that when defendant rushed into his office as above stated, and in the same conversation above stated, the defendant claimed that Joe Brown, deceased, was the leader of the mob, and had organized it for the purpose of killing him." This testimony, in which the witness named Joe Brown as the leader of the mob, was excluded; and it will be seen, going through the statement of facts, that the court permitted the witnesses to testify as to all the facts of these conversations, leaving out the name of Joe Brown as the leader of the mob, merely referring to the leader of the mob as "a certain person." It has long been recognized that a delusion is a form of insanity. It is sometimes called "monomania"; that is, the subject may be sane on every other topic, but insane on some particular topic. Of course, it denotes an impairment or disease of the mental faculties which may more or less affect the mind generally. We quote from Mr. Wharton on this subject (1...