Pearson v. State

• Decision Date: 23 June 1909
• Citation: 120 S.W. 1004
• Parties: PEARSON v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W. 1004

PEARSON v. STATE.

Court of Criminal Appeals of Texas.

June 23, 1909.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

T. J. Pearson was convicted of murder, and he appeals. Reversed and remanded.

Stevenson & Brown and Crawford & Lamar, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was given a life term in the penitentiary on a charge of murdering W. E. McConnell.

The record contains 427 pages, independent of the statement of facts, and it required 421 pages of typewritten matter to cover the evidence adduced on the trial. The evidence chronicles one of the saddest stories and tragedies of human life. The deceased was a practicing attorney at Mineral Wells, where the homicide occurred. Appellant was at the head of a family consisting of his wife and several children, some of the children grown. Their domestic relations were, and had been for a long time, of a very unpleasant character. His wife, for various reasons, had ceased to live with him, and had engendered in her mind a spirit of aversion, if not hatred, towards him, growing out of their domestic troubles. She had become jealous, and this jealousy had matured into very unkind feelings. They lived separate, though in the same town; the wife occupying the homestead, with those of the children who remained in Mineral Wells. Appellant accumulated quite a competency, which he had divided with his wife under an agreement. Under this agreement he had given her about $12,000 worth of property, retaining something less; his being incumbered by all the debts, amounting to about $3,000. At the time of their separation, at least at the time of the mentioned agreement, the division of the property seemed to be entirely satisfactory to the wife. It was claimed by appellant that deceased had induced his (appellant's) wife to believe that he had mistreated her in the settlement and had gained vastly the advantage in the division of the property. It is further claimed that deceased had about induced Mrs. Pearson to bring suit for divorce and ask for an annulment of their previous settlement between herself and husband, with the further purpose of placing the entire property in the courts and in the hands of a receiver; that deceased had gone sufficiently far to advise Mrs. Pearson that she would be justifiable in taking the life of appellant, and that he (deceased) would see that she was acquitted. There is evidence of this character in the record.

On the morning of the fatal meeting between appellant and deceased, appellant had gone to their homestead, which was occupied by his wife, in order to induce her not to bring the suit and fritter away the property in litigation, and with the further view of another agreement with her, to the effect, in substance, that they would make an arrangement by which the property could be used for herself and children, and especially the children, and that he would relinquish all right, title, and interest to the entire property, and leave the country, and go away, and begin life anew. His wife was very discourteous upon his arrival at the house, and phoned for the deceased, who had advised her under no circumstances to talk about the management of her property and matters connected with it, except to or with himself. Deceased was not in the office at the time of the phone call; but his partner, or a young lawyer in the office, replied, and was in the act of starting to the Pearson homestead, when the deceased entered his office and answered the call by going to Pearson's homestead. Upon arriving at the house, deceased was escorted into the parlor. After deceased had entered the parlor, appellant also entered it, and almost instantly the shooting occurred, resulting in the death of the deceased at once. As is usual, the immediate incidents connected with the homicide are presented from very different standpoints. The state insists it was an unjustifiable killing; appellant that the shooting was in self-defense, and not above the degree of manslaughter. The evidence took a very wide range, and was gone into with great prolixity. The record contains 92 bills of exceptions of various lengths.

1. The first bill of exceptions complains of the ruling of the court in refusing a continuance for the testimony of absent witnesses, among whom were appellant's wife and a Mr. Harris. The bill is qualified by the trial judge, in which he takes a wide range of statement of reasons, things, and matters that seem to be dehors the record, and which seem to have been known to him, or in some way called to his attention. This was appellant's first application for a continuance. We are of opinion the diligence was sufficient as to the wife. It is shown that after the homicide she left the state. The judge seems to have had the idea, as stated in his qualification of the bill, that Mrs. Pearson was spirited out of the country by her husband; at least that he was in some way responsible for her absence, and was, therefore, not entitled to a continuance on this ground of the application. We do not believe this record sufficiently suggests that theory or sustains that conclusion; at least, the evidence in this connection is entirely too slight. It is true that they were husband and wife. They had not been living together. Her feelings up to the very moment of the death of the deceased had been very bitter towards appellant—acutely, incisively bitter. Things had been said, or at least the record shows that she had been informed of statements that appellant made, that reflected upon her, or were calculated to imbitter, and these statements were conveyed to her by the deceased. These matters were partially proved by the witnesses, and there were intimations of others drawn out in the investigation of the case; but this was the first application for continuance, and even if the testimony adduced upon the trial should be held to be cumulative of her testimony, or her testimony cumulative of that adduced, still this would not furnish a reason for refusing the first application. The court suggests there may have been a reconciliation between appellant and his wife after the death of deceased. This may or not have been partially true; but it is far from clear under this record that she left the country without his knowledge, and, of course, without his consent. She went to some point in the state of Oklahoma. He sought her testimony at that point, or information as to where he could get her testimony, and finally discovered the fact that she had gone to New York or New Jersey. He was unable to locate her point of residence in time to secure her testimony, if in fact he located it at all up to the time of the trial.

In support of his diligence appellant appends the affidavit...