Paschal v. State

• Decision Date: 10 March 1915
• Docket Number: (No. 3442.)
• Citation: 174 S.W. 1057
• Parties: PASCHAL v. STATE.
• Court: Texas Court of Criminal Appeals

174 S.W. 1057

PASCHAL v. STATE.

(No. 3442.)

Court of Criminal Appeals of Texas.

March 10, 1915.

Rehearing Denied April 7, 1915.

Dissenting Opinion, April 8, 1915.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Lee Paschal was convicted of murder, and he appeals. Affirmed.

Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of the offense of murder, and his punishment assessed at imprisonment in the penitentiary for life.

A brief statement of the evidence should be made in order that the holding of the court may be clear on the various questions raised.

Mrs. Mattie Underwood testified that she knew deceased, "and up to two years ago she had washed for deceased off and on ever since she had married appellant; that she had heard defendant on various occasions curse and abuse his wife (deceased) from about two years prior to her death clear back to the time they were married."

Mrs. Barnes testified that she was the mother of deceased, and that deceased and appellant had been married 10 years. During this time they had separated four times. The last time they remained apart for 2½ years, commencing to live together again about 2 years before her daughter's death.

W. A. Marlar testified: That he had lived a neighbor to appellant and his wife something more than a year immediately preceding deceased's death. That on the night of the ice cream supper in Woodbury (fixed in the record as the 17th day of last July) his "attention was attracted to some smothered screaming at Lee Paschal's home. At the time I heard this smothered screaming I was lying on the bed, and I got up and went out on the east end of the south porch, and I heard that smothered screaming, saying, `Oh, Lord, don't kill me,' or, `You are killing me,' I could not tell which, and I heard Lee Paschal say: `Come out of there, you G__d d__n son of a b__ch; you have already cost me a thousand dollars.' That was Lee Paschal that said that; I recognized his voice. The first time that I heard the screaming it was just loud enough for me to hear it; seemed like it was down in a hole and smothered up or something. It was not distinct." He gave as his reason for not going to the house that these occurrences were common at the home of appellant while he lived close to him. That about six months before her death appellant's wife came to his home about 12 or 1 o'clock at night. He testified:

"She ran in and fell on the gallery exhausted. She had her hand cut and wrapped up with a handkerchief or white piece of cloth, or something of the kind. She come in and says: `Mr. Marlar, I don't want to confuse you all, but I have come here for protection. Lee is after me trying to kill me.' Mrs. Bertha Paschal stayed that night and the next day at my house. Lee Paschal came up there the next morning and called for her. He came up to the gate, and I was out there at the door that goes into the cellar, and I says, `What do you want?' Lee says, `I want Bertha.' He had a butcher knife in his pocket, about that long (indicating), with the blade sticking up, and he pulled it out and waved it around that way, and I says something to him, and he left. Mrs. Paschal has been at my house twice, but I don't remember whether the other time was before the one I have just related or afterwards."

Curtis Marlar testified that on the night of the 17th of July he was awakened by the noise at appellant's house, and heard appellant say: "You G__d d___n son of a b__ch; you have already cost me a thousand dollars."

A. J. Paschal, the little nine year old son of appellant and deceased, testified:

"Shortly before my mother died, I remember my daddy coming home one night. I heard my daddy coming home, and mamma and I got up and went in an old room that we was not using and made us a pallet and went to sleep. When daddy first got home he hunted us, and he couldn't find us, and he got him a quilt and lay down and went to sleep and slept about an hour. When he woke up, he got up and struck matches and found us. When he found mamma lying down on the pallet, he says to her: `Come out of there, G__d d___n you; you have already cost me a thousand dollars.' And he come in there and got a stick, and he tried to hit her with it, and he was so drunk she could outhold him. She would catch hold of the stick. He throwed things at her, but he didn't hit her. It was dark in there, and I could not see what he was doing all the time. It was so dark I couldn't see. While daddy was doing this to mother, she said, `You are killing me.' She said that all the time. My mamma told daddy while he was in the room there hitting her with the stick and throwing things at her that he was killing her, and she got out of the room and got out on the gallery, on the front gallery. When she got out there, daddy pulled her through the window by the hair of her head. After he pulled her through the window, he never pulled her no further. She was on the gallery when he pulled her through the window, but I don't know whether she was laying down or standing up, or what; I was in the house, and it was dark, and I could not see. Mamma was saying then that: `Oh! You are killing me.'"

He said his father was drunk that night. That he also tried to hit his mother with a seine pole, but he was so drunk he could not hit her with it. That "after daddy had hit mamma she laid there on the pallet. After he had pulled her in the room through the window, he told her he was going to set fire to the pallet. He would strike matches and stick the matches under the quilt, but the quilt would smother them." He says that his mother complained that her side hurt her, her head hurt, and her back hurt. The next day he saw bruises on his mother's back.

Mrs. N. E. Sherrod testified that she went to see Mrs. Paschal on Saturday before she died, and in a conversation with her she asked her:

"`Bertha, what about the medicine? Lee is gone, and Mrs. Paschal is gone, and,' I says, `I don't know nothing about it.' `Well,' she says, `Granny Sherrod, its no use to give me that old medicine, for how can I live.' She says, `I am dying from mistreatment.' I says, `Honey, how; what is the matter?' `Well,' she says, `Lee got drunk on that nasty old whisky and came in and just beat and kicked me all to pieces.' Well, I asked her where he kicked her. `In the side and other places,' she said, `but I am kicked all to pieces,' she says. `He has told me, he accused me of turning him in, and he told me he would kill me for it if it took him 10 years.'"

The state without objection, introduced an information charging appellant with making an aggravated assault on his wife on June 2, 1913, and his plea of guilty thereto.

Over the objection of the defendant, the state was permitted to prove by Mrs. Pearlie Riley: That, some seven or eight years ago, Mrs. Paschal was at her home on a visit and appellant came and tried to make her go home.

That "he first came and asked where the men folks was, and we told him — I told him where they was, and he went away, and he came again, and the second time he came is when he raised a racket with his wife and told her that he was going to make her go home with him, and she refused to go, and he just beat her and choked her — I thought he had killed her — and stamped her and cursed her. He beat her in the face first with his fists, and then he choked her about two or three minutes, choked her until she was right black and could not speak. I did not see him beat her with anything besides his fists. He tore off part of her clothes and taken his knife out and cut the rest of them off, and then he stamped her with his feet. She was right out in my yard when he stamped her, after he had torn and cut her clothes off of her." That he said at that time he was going to kill her.

Also over objection of appellant, Prof. S. P. Martin was permitted to testify that some seven or eight years ago he heard swearing and hollering at A. J. Paschal's house; that this attracted his attention, and he looked and saw deceased run out of the back door of the house and go around the house; that appellant was running after her cursing and swearing; that the language appellant used was very profane. This witness also testified that at the time of the death of Mrs. Paschal he lived near them. To quote his testimony:

"I have heard the defendant, Lee Paschal, curse and abuse Mrs. Bertha Paschal during her lifetime. I heard of the death of Mrs. Bertha Paschal. I was in Woodbury at that time. I remember the Woodmen having an ice cream supper along about some time in July at Woodbury. I heard cursing down there about that time, even that night, swearing, cursing, and loud talking. I think that I would recognize his voice, and I did recognize it as being his voice. At one time during that night I heard something like some one hollering down there, but I could not say whether it was a child hollering or a woman hollering. I don't know; I wasn't there. I did hear some one hollering down there. I heard the defendant saying, `G__d d___n,' or something to that effect, and I heard him say another time, at the same time, something about, `You have cost me so much'; but I didn't just exactly understand the amount he said—just cursing and swearing. I can't recall the exact language that he used, but it was very profane language. I heard the racket, of course; I could not well avoid hearing it. And I heard some one whom I took to be Mr. Paschal say, `G__d d___n you,' or something to that effect, `You have done something,' and I think I understood him to say, `You cost me something,' but I could not say now what amount, or what it was. He cursed on some little bit, swearing along about that time, and I think I heard some one seem to holler about that time; I could not say whether it was a child, or woman, or a man. I just heard the noise, but never...