Pollard v. State

• Decision Date: 29 April 1903
• Citation: 73 S.W. 953
• Parties: POLLARD v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 953

POLLARD v. STATE.

Court of Criminal Appeals of Texas.

April 29, 1903.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

W. H. Pollard was convicted of murder, and appeals. Reversed.

S. A. Crawford and Jno. C. Williams, for appellant. S. A. McCall, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

The evidence, in effect, shows that deceased, Spencer Davis, and Littleton Pollard, the father of appellant, had a difficulty on Monday, February 18, 1901, in which Littleton was worsted. Appellant and his brother, Washington Pollard, were at Willis, several miles distant, but, having heard of the transaction that evening, they came on horseback to their father's house and remained there a short time, and went a short distance to their grandfather's, Isaac Pollard's, and stayed all night. Early the next morning appellant and his brother, Washington, both armed, went to where deceased was working in his field, and, as he approached where they were, leading two horses, the difficulty occurred. As far as the state's testimony was concerned, there was no eyewitness to the homicide. The state evidently relied upon the fact that appellant and his brother entertained a grudge against deceased because he had beaten and severely injured their father on the day before, and the further fact that they armed themselves on that Tuesday morning, and went rapidly to the field of deceased, and, as soon as they reached the point where deceased was subsequently found, the shooting occurred. The parties then rapidly left the scene. Appellant himself testified that when he heard deceased had beaten his father he came to see about it, and, after staying all night at his grandfather's, he determined to go and see deceased in regard to it; that he went on foot, and did not expect his brother, Washington, to go with him; that he carried a pistol because he knew deceased was a dangerous man; that his brother, Washington, followed, and caught up with him, and he was armed with a shotgun. When his brother came up, he said, "I thought I told you to stay at home." However, they went together to the place of the homicide, and when they got down near the branch in the field where deceased farmed, they met deceased, who was riding one horse and leading another. Appellant said to him, "Hello, Spence, I want to talk to you about what you did to father." Deceased did not speak, but kept approaching, and attempted to draw his pistol with his left hand; that he and his brother both fired at deceased about the same time; that he missed deceased, but his brother killed him. When deceased's body was found, his pistol was on the ground near his lefthand. This is substantially the testimony adduced.

Appellant contends the court committed an error in overruling his motion for continuance. However, the bill of exceptions taken by appellant to the overruling of said motion was filed on February 5th, whereas the term of the court adjourned on January 28th. To cure this failure to file the bill in term time appellant has presented to this court an agreement entered into between the district attorney, representing the state, and counsel representing appellant, to the effect that certain bills of exception could be filed after term, and considered as filed during the term. The recitation on this point in the agreement is as follows: "It is agreed that the bills of exception in this cause were to have been filed as in term time, and they show that the reason why said bills of exceptions were not filed and dated in term time was due to an oversight of the clerk of the court, and the district attorney here shows that he urged no objection, and agreed to the filing of the bills of exception at the time they were filed, and knows that it was understood that they should have been filed before the court adjourned." The wording of this agreement is peculiar, but we do not understand it to exonerate appellant's attorney for failing to file the bills during the term. We cannot consider the question as coming within that line of decisions which would authorize the bill to be considered though not filed during the term, on the ground that there was no laches on part of appellant or his counsel, and that the neglect to file the same was solely due to the clerk or some other officer. Stanford v. State (Tex. Cr. App.) 60 S. W. 253. This case comes rather within the rule laid down in the decisions of Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; Nichols v. State, 37 Tex. Cr. R. 616, 40 S. W. 502. Accordingly, the action of the court overruling the motion for continuance cannot be considered.

What we have said as to this bill of exceptions disposes of appellant's first, second, and fourth bills, which are to the action of the court with reference to the admission of certain testimony. As explained by the court, there is nothing in appellant's bill of exceptions No. 3. The court was authorized to overrule the motion for new trial and in arrest of judgment, when informed that the same was merely to the action of the court giving and refusing charges, and it was not necessary to have the same read.

In appellant's motion for new trial he questions the action of the court in regard to giving certain charges. Amongst other things, appellant strongly insists that the court should have given a charge on manslaughter predicated on the...