Pettis v. State

• Decision Date: 16 October 1912
• Parties: PETTIS v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W. 790

PETTIS v. STATE.

Court of Criminal Appeals of Texas.

October 16, 1912.

Rehearing Denied November 13, 1912.

Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.

Jim Pettis was convicted of murder in the second degree, and appeals. Affirmed.

King & King, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder, and, when tried, he was found guilty of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary.

1. In the first two bills of exception appellant complains that the state was permitted to ask the witnesses Earnest and Jesse Hutchinson the question: "State to the jury what statement or remark in the nature of a threat, if any, you ever heard the defendant make to your mother, Belle Hutchinson (deceased), while she was living on his place." The answer to the questions, if any made, are not included in the bills, consequently the question is not presented in a way we can review the same. Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544, and section 1123, subd. 3, White's Ann. Procedure. However, if we turn to the statement of facts, we learn that the witnesses answered that they had heard the defendant say to their mother he would kill her if she ever left him. As she had left him and he had killed her, the testimony of this threat was admissible.

2. By bills 3 and 4, it is shown that witnesses were permitted to testify that Charlotte Belle called to deceased to run, that defendant would kill her. The evidence in the case from the state's standpoint would show that Belle Hutchinson, deceased, who had been living with defendant, had left him and gone to Charlotte Belle's house; that defendant came driving by and stopped his wagon in front of the house, and Belle Hutchinson and he engaged in a conversation; that, after some words had passed, he raised up, drew his knife, and got out of the wagon, when this remark was made by Charlotte Belle to Belle Hutchinson. The state's testimony further shows that Belle Hutchinson did run, and defendant ran after her, caught her, and cut her throat, she dying a few days thereafter. This being the evidence on behalf of the state, there was no error in admitting the testimony. Long v. State, 48 Tex. Cr. R 179, 88 S. W. 203; Jeffries v. State, 9 Tex. App. 598.

3. It appears that defendant placed his wife, Lizzie Pettis, on the witness stand, and she testified to very abusive conduct on the part of deceased, and that she told her husband about it, and repeated the language to him. On cross-examination Lizzie Pettis was asked by the state what remark, if any, was made by defendant when she recited the incidents to him. Appellant objected on the ground that he had not questioned her about the answer made by defendant, and, the witness being his wife, she could not be compelled to testify. The defendant having introduced a portion of the conversation with his wife, the state was entitled to the whole conversation, in so far as it relates to the same subject. Article 791, Code of Criminal Procedure, and authorities cited in section 1043, White's Ann. Code of Criminal Procedure. However, if this was not true, the answer given by the witness as recited in the bill could not have been hurtful to defendant, but would rather be in aid of establishing that the defendant, if guilty of any offense, was guilty of no higher grade of offense than manslaughter, and this was his purpose in introducing the statements of the wife to him.

4. The defendant offered to prove his reputation for truth and veracity by several witnesses, and complains of the action of the court in refusing to permit him to do so. As the state had not sought to prove contradictory statements, nor impeach the defendant, there was no error in the ruling of the court. The fact that two witnesses swore defendant had made certain statements to them and in their presence at the time of the homicide, which statements defendant denied making when testifying as a witness, does not entitle him to prove his reputation for truth and veracity. Hill v. State, 52 Tex. Cr. R. 246, 106 S. W. 145, and Branch's Crim. Law, § 877.

5. Appellant excepted to the charge of the court in presenting the issues of assault to murder and aggravated assault on several grounds. The first is, because the court erred in not instructing the jury that, if the instrument used was not one likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears. The evidence shows that the instrument used was a knife, the blade of which originally was about three inches long, but which had been broken off, and the blade ground down to a point at the time of the killing, being a little over an inch and a half in length and three eighths of an inch in width. The attending physician testified: "There was one wound from the left beginning a little below the angle of the jaw and extending pretty nearly across the trachea, the windpipe. The second wound seemed to come from the right, and went into what we call the `Adam's apple.' There was a stab wound at the angle of the left jaw, which broke off a piece of the jawbone, and a stab in the back of the neck. There were one or two minor cuts on the forearm, some cuts on the fingers, and a slight gash on the left shoulder. The wound in the throat was a cut clear across and gapped very wide. There were some blood vessels severed in the cut. A vein or two on the left side had to be taken up with clamps." In his judgment he stated the death of Belle Hutchinson was caused by the knife wounds. Mosco Lee and Charlotte Belle, who witnessed the cutting, say that Belle Hutchinson asked defendant to bring her things to her, and he said he would if she would come and go with him after them. This she declined to do, when defendant got out of his wagon, pulled his knife out, and started towards deceased, when Charlotte Belle holloed to her to run, that defendant would kill her. Deceased ran back through the house, around the house, and by the buggy Mosco Lee was sitting in, asking Lee not to let defendant hurt her. Lee requested defendant to desist, but he kept on after deceased, and Charlotte Belle says overtook her, stabbed her, jerked her down, got on her, and inflicted the wounds described by the doctor, the deceased saying: "Oh, don't kill me, don't kill...