Norwood v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 192 S.W. 248
• Docket Number: (No. 4262.)
• Parties: NORWOOD v. STATE.
• Decision Date: 15 November 1916

192 S.W. 248 NORWOOD
v.
STATE. (No. 4262.) Court of Criminal Appeals of Texas. November 15, 1916. On Motion for Rehearing, February 14, 1917.

Appeal from District Court, Jones County; Jno. B. Thomas, Judge.

Wiley H. Norwood was convicted of murder, and he appeals. Reversed and remanded.

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J. F. Cunningham, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 15 years in the penitentiary.

Appellant earnestly contends that the evidence was insufficient to sustain a conviction for murder, that no motive was shown except an insult to his wife, and that, if guilty at all, his offense would have been manslaughter and not murder. When such contention is made, the rule is that, in passing upon the question, this court must take all the incriminating testimony and all reasonable and proper deductions which may be drawn therefrom and determine from all this the legal proposition of whether or not the evidence was sufficient. In considering such question, the court does not look to the testimony which might authorize the acquittal of an accused nor the testimony which might be sufficient to justify the jury to find a lower grade of offense, but solely as stated to the incriminating testimony and reasonable and proper deductions which may be drawn therefrom. It must also be borne in mind:

"This court cannot legally take the place of the jury and determine whether or not it will believe any witness, or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury and if so reverse the case on that account." Kearse v. State, 68 Tex. Cr. R. 635, 151 S. W. 827.

Our statute expressly provides:

"The jury, in all cases, are the exclusive judges of the facts, proved, and of the weight to be given to the testimony." Articles 786 and 734, C. C. P.

And it is the exclusive province of the jury to pass upon the credibility of the witnesses.

The jury consists of 12 intelligent, disinterested, impartial, unprejudiced, and unbiased men, selected from different portions of the county and from different avocations, each of whom hears all the witnesses, sees them when testifying, and observes their manner and the method of their examination by the respective attorneys. The statement of facts brought to this court cannot portray the manner, the acts, and the deportment of the witnesses, nor the manner of their examination and cross-examination. In addition, the trial judge hears, sees, and observes all this, and he sustains the verdict of the jury in overruling the motion for a new trial. Kearse v. State, supra.

As stated by this court, through Judge Ramsey, in Reeseman v. State, 59 Tex. Cr. R. 436, 128 S. W. 1129:

"Many things occur in the presence of the jury that do not appear in the written record before us; references to the manner of witnesses, their hesitation, and a thousand things which may affect their credibility are the subject of comment as matters happening in the presence of the jury which cannot appear in the printed record."

It is also universal that:

"The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the most worthy of credit, and to give credit accordingly.

"That the jury are the judges of the credibility of the witnesses, and of the weight to be attached to the testimony of each and all of them; and the jury are not bound to take the testimony of any witness as absolutely true, and they should not do so, if they are satisfied from all the facts and circumstances proved on the trial that such witness is mistaken in the matters testified to by him, or that, for any other reason, his testimony is untrue or unreliable.

"The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact because a witness has stated it to be so, provided the jury believe, from all the evidence, that such witness is mistaken or has knowingly testified falsely."

Sackett on Instructions to Juries, p. 29; Melton v. State, 71 Tex. Cr. R. 143, 158 S. W. 550.

We cannot undertake to give all of the testimony, but we will give, in substance, some of the most material. Appellant and L. H. Becker, the deceased, had lived neighbors about a quarter of a mile apart just a short time more than one year. Both were tenants on the farm of appellant's father. The deceased lived north, and one of the material witnesses, Mr. Lipham, lived west, of appellant about a quarter of a mile distant. The houses and premises of appellant and deceased were plainly visible, one from the other, a pasture with only some low, scattering mesquite intervening. There was a ravine, or branch, running about north and south west of the premises of each, extending from one to the other and beyond each. A person could get into this ravine near appellant's and go from there in it to a point near deceased's house and behind his barn, and then after emerging from the ravine continue behind deceased's barn so as to be unseen from deceased's house until he emerged very close thereto from behind the barn. This ravine was of sufficient depth to conceal a person all this distance.

About 11:30 a. m. on February 17th, and about an hour or a little longer before appellant shot and killed deceased, appellant was at work in his young orchard with trees of only one year's growth, watering his grapevines. This orchard was about 50 or 60 yards from his residence and extending perhaps 100 yards further therefrom. While thus engaged, deceased went from his residence to where appellant was. At this time George Sampson, another neighbor, was talking to appellant. When deceased reached there, the three stood talking for some minutes, when deceased said to appellant he wanted to borrow some tobacco and to know

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if he could get it. Appellant told him that he could, to go up to his house and get it from his wife, and that he was coming on. Mr. Sampson swore that there was nothing between the orchard and the house but a wire fence. Sampson and deceased left appellant together, Sampson going to his home in the neighborhood. Deceased went direct to the back door of appellant's house. Sampson saw him go to the west door and stop there. He said that when he saw deceased standing there appellant was going from the lot up to his house, and the lot was 50 or 60 steps from the house. When deceased reached appellant's back door, he asked appellant's wife for the tobacco. She told deceased to hollow and ask appellant where the tobacco was which he did. Appellant answered, telling where it was, and she then got and handed it to him. Mr. Gleaton was at work in Mr. Lipham's field, about 160 yards from where said parties were, and saw Sampson and deceased when they left appellant in his orchard. He swore that deceased went on to appellant's house, but just before reaching the west side the house obstructed his view of deceased, but that he was near appellant's back door at the time; that in four or five minutes after this he saw deceased going from appellant's; that deceased was not out of his sight from the time he saw him going towards appellant's back door until he saw him emerge from behind the house again, going towards his home, but 4 or 5 minutes. Appellant swore that it was some 20 to 30 minutes from the time deceased left him to get the tobacco until he went into his house and saw and talked to his wife. The other testimony was sufficient to show that the time was much shorter than he testified.

Appellant introduced his wife as a witness for him, and had her sworn and testify in his behalf. In her direct testimony she swore that she was 18 years old, and married appellant November 26, 1914; that she saw deceased at her house about 11:30 o'clock a. m. before he was killed the day he was killed; that he came to the house and in it, and asked for a can of tobacco, which he said her husband had told him he could get, and asked her where it was; she went to the buffet to get it, and deceased hollowed and asked her husband where it was, and then followed her in the dining room and tried to put his arms around her; that she fought him off, told him that she would tell Mr. Norwood, and he told her that she had better not, and that he then left; that when he got outside of the door he asked her to meet him down at the straw stack at 3 o'clock that evening, and she told him she was not going, and he told her that if she did not at 6 o'clock there would be hell to pay around there; "that was all he said to me on that occasion;" that on other occasions prior to that time he had said insulting things to her; one time in 1914, when she had spent the night at his house, she had to go home the next morning to do some phoning, and that he went with her to feed the stock, he said, and went in the house and opened it up; she told him he need not mind that, and he said he wanted to see if there were burglars in the house; that she sat down to phone, and while phoning, he put his arm on her shoulder, and she told him to remove it and get away, and he did not bother her further until she finished phoning; that when she finished and turned around he tried to pull her on the bed, and she fought him off and told him she was going to tell her husband, and "he told me if I did he would kill me"; that he insulted her the day before he was killed while she was down in the field cutting stalks; that he tried to get her to go down in the bed of the creek with him, which she refused to do, and that he said that he had sent Mike, a Mexican, to talk to her husband so...