Phillips v. State

• Decision Date: 11 May 1910
• Citation: 128 S.W. 1100
• Parties: PHILLIPS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1100

128 S.W. 1100

PHILLIPS v. STATE.

Court of Criminal Appeals of Texas.

May 11, 1910.

Rehearing Denied June 8, 1910.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Will Phillips was convicted of murder, and he appeals. Affirmed.

Jno. S. McIlwaine and Sawnie Robertson, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was indicted and tried for murder, which resulted in his conviction of murder in the second degree, with a penalty of 35 years in the penitentiary.

On the 7th day of April, 1909, in the county of Smith, on the evening of said date, the deceased, Dave Choice, was riding along the public road in his buggy. He passed by the field of the state's witness Taylor, who was in said field planting cotton. Deceased was going east. Some 20 minutes after he passed, the witness Taylor saw the deceased, Choice, coming running towards him in the field. Deceased was an old man, some 70 years of age, and bent double with rheumatism. When the witness Taylor looked up and saw the deceased coming toward him, he saw also the appellant in this case getting through the wire fence behind the deceased. Appellant approached within about 20 steps of the deceased. The deceased cried out, "Oh! Lordy, I am a dead man." The witness holloed at appellant to stop. Appellant paid no attention to him, but fired, the load striking the old man close to the heart, and the old man staggered a few steps and fell. Appellant had a single-barrelled breech-loading shotgun. When the deceased fell, appellant unbreached his gun, threw out the empty shell, reloaded his gun, and fired again, striking the old man in the head, killing him instantly. There is no testimony in the record that impeaches or discredits the testimony of Taylor as to what transpired at the time of the killing. It may be stated that bad blood had existed between the deceased and the appellant for some time, and threats had been made pro and con. At the time of the killing the deceased was unarmed, and had no weapon on his person or about him. The defendant offered some proof to the effect that the deceased went up to the town of Winona that morning, and that when he left home had his gun, and that he had hid it on the road close about where the killing occurred, and that defendant thought, at the time he killed the deceased, that deceased was making for the gun where he had it hid. It is unnecessary to set out in detail all the testimony in the trial of the case. Testimony was introduced upon the various issues in the case, and the court submitted the case to the jury upon murder, manslaughter, and self-defense, and also on the subject of threats. We find in the record several bills of exceptions.

Bill of exceptions No. 2 recites that while the witness Peter Lott, a witness for the defendant, was on the stand, the court permitted the state to ask the witness the following questions: "Were you in the crowd that tried to shoot Dave through the window?" The witness answered, "No." The state asked the witness again, "Is it not a fact that it was generally understood that the defendant was in the crowd that shot old Dave, the deceased, through the window?" The witness answered, "No." Question: "Is it not a fact that defendant had something to do with shooting old Dave, the deceased, through the window?" Answer: "I do not know anything about whether defendant had anything to do with shooting the deceased through the window or not." These questions were all objected to, as well as the answers, on the ground that the same were irrelevant and immaterial, and that proof that a short time prior to the killing some one had shot deceased through the window, without in any way connecting defendant with the shooting, was highly prejudicial to the defendant. Practically these same questions were asked the witness Williams while he was on the witness stand, as shown by bill of exceptions No. 1, and the witness Williams answered that before the killing he had heard old man Dave had gotten shot, but witness said that he had never heard that Will, appellant, did it. This testimony was all objected to. The court, in his qualification to the two bills, states that the said Williams and Lott had on direct examination testified...