Powdrill v. State

• Decision Date: 19 June 1913
• Citation: 155 S.W. 231
• Parties: POWDRILL v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W. 231

POWDRILL v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1913.

Rehearing Denied February 5, 1913.

Appeal from District Court, Rusk County; W. C. Buford, Judge.

J. O. Powdrill was convicted of murder in the first degree, and he appeals. Affirmed.

D. M. Short & Sons, of Center, for appellant. Blount & Strong, of Nacogdoches, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On August 4, 1910, appellant was duly indicted by the grand jury of Shelby county for the murder of his son Oscar Powdrill on June 23, 1910. There was a trial of the cause had first in Shelby county at which the appellant was convicted of murder in the first degree. On appeal to this court the cause was reversed. The opinion is reported in 62 Tex. Cr. R. 442, 138 S. W. 114. Thereafter the venue of the case was properly changed from Shelby to Rusk county and a second trial had in January, 1912, when the appellant was again convicted of murder in the first degree and his penalty fixed at life imprisonment.

On the first trial appellant testified in his own behalf. On the last he did not. Some of the witnesses who testified on the first trial did not testify on the second; while some, who did not testify on the first, testified on the second trial.

It is unnecessary to make an extended statement of the evidence. There was very little, if any, conflict in the evidence. In order to bring out and decide the questions raised, we will make a brief but substantial statement of the evidence.

In November, 1907, some trouble arose between appellant and his wife which resulted at that time in their separation; she leaving or being forced to leave their home. They had then been married many years and had several children, some of whom were then grown. Among them was Oscar, their son, the deceased. Oscar had been away from home some time. About November 4, 1907, he returned home and found that his mother and father had separated and that his mother was away from the home. His father would not let her come back. When Oscar reached home that night, finding his mother gone, he spoke to his father and said, "What does this mean?" His father, appellant, replied, "I do not know that that is any of your damn business." His father then attempted to get a gun to shoot his son Oscar, but was prevented by some one present from doing so. He then assaulted Oscar, kicked him, got out his knife, and cut him and ordered him to leave home. Oscar did so. When Oscar was then leaving, appellant told him if he caught him monkeying with his business any more he would kill him. The next morning appellant also told Bud McKenzie, who was talking with him about what had occurred between him and Oscar the night before, that he "liked to have killed Oscar" the night before, and if he came there cutting up again he would kill him. About the same time he also told Frank Patterson that if Oscar did not quit meddling with his business he would kill him. The morning after appellant's assault on Oscar he told his son Bob that if Oscar ever meddled with his business any more he was going to kill him.

Either the last of April or first of May, 1910, appellant was in the office of Mr. Sanders, an attorney in Center, talking to Mr. Sanders about his (appellant's) family and domestic matters and trouble and about Oscar's taking up for his mother, and in that conversation he said to Mr Sanders, "Oscar is taking up for his mother and prying into my domestic affairs, and if he keeps it up I am going to kill him." A short time before the killing and the Monday when appellant met his wife and son investigating his sale of some hogs, and when appellant was returning from, or going to, Athens, he met S. M. Adams. They had been acquainted for many years. After they talked a while, Adams asked him how he was getting along, and he replied that he was not getting along much; that the world had gone against him, and, when asked what was the trouble, and when told by Mr. Adams if he would leave it to Mrs. Powdrill and go back and do what she said that things would blow over, and after discussing the matter further, as the witness expressed it, one word brought on another, and appellant said, "if things don't change, hell will be to pay."

When this said assault and cutting of Oscar occurred, appellant's wife had either then sued him or did sue him for a divorce, praying for an injunction against him. Soon after this a reconciliation occurred between appellant and his wife. That suit for divorce was then abandoned, she returning to her home, and they continued to live together until January, 1910. In January, 1910, trouble again arose between appellant and his wife, and on February 13, 1910, she again sued him for a divorce and prayed for an injunction, which was granted by the judge of the district court of Shelby county in the divorce suit. So much only of this divorce and injunction proceedings was introduced as to show that appellant and his wife were married in September, 1880, and that they continued to live together until January 19, 1910; that during their marriage they had accumulated both real and personal property, and among other things about 100 head of hogs. She prayed that appellant be required to return an inventory and appraisement under oath of all their property; that she be allowed to remain in possession of their homestead and other personal property; that a writ of injunction issue restraining him from interfering with her possession of the same, or coming about plaintiff or said premises, or molesting her in any way, and restraining him from disposing of any of said property or contracting any debts on account thereof until the further order of the court; that the court granted her prayer, and upon her entering into bond required him to return said inventory and enjoined him from selling or otherwise disposing of or wasting any of said property or incurring any debts or liability that would incumber the same; that that divorce cause would be heard on the first Monday in August at the August term of said court. The appellant was at once duly served with proper citation and the said writ of injunction. So much of the injunction bond was introduced as to show who the sureties were, one of whom was Oscar, the deceased.

Notwithstanding this injunction and the appellant's notice and knowledge thereof, some ten days to two weeks before the killing he removed from the home place and sold and delivered several head of these hogs and received pay therefor. A few days after this sale his wife and Oscar were informed of it. On Monday morning, June 20th, preceding the killing the following Thursday, June 23d, appellant was fully informed that his wife and son Oscar were investigating his sale of these hogs, and, in fact, they met him at the home of his niece to whom he had sold the hogs, and he then knew that his wife and son were proceeding to Center, the county seat, to lay the matter before their attorney for the purpose of proceeding against him to have him punished for selling said hogs in violation of said injunction. Just after this meeting with his wife and son, he left the home of his niece and went near to his own home to Mrs. Sanford's, where he was boarding, and on this same day, Monday preceding the killing Thursday, he told Mrs. Sanford that his wife and son had been up to his niece's investigating his sale of the hogs to her, and further said to Mrs. Sanford that they were fixing to put him in jail about it; that he had found that out; and that Oscar was to blame with it and the one most in the business, and he asked her, "Why does he not stay at home and attend to his own business and let my business alone?" And further said, "Well, I am going to put a stop to it right now."

It was further shown that Oscar and his mother, after meeting appellant at appellant's niece's, went on to Center, saw their attorney, discussed with him about appellant having taken and sold said hogs, and their attorney agreed to prepare, and did prepare and send to them the next day, an affidavit for Mrs. Powdrill to make proceeding against appellant for violating the said injunction in the sale and disposition of said hogs. The notary in the neighborhood lived about one mile north of the Powdrill place and was in the mercantile business there also. Just after noon on Thursday, June 23, 1910, the day of the killing, appellant passed his home going to this notary's store, walking and carrying a gun. Some of his children saw appellant pass the house going towards this store and notary. Shortly after this, Oscar, who lived some few miles distant, drove to his mother's home in a buggy, accompanied by his wife and baby. His wife and baby at once got out of the buggy, and Mrs. Powdrill and her son Oscar got in it and drove from there to said notary's store. They were accompanied by another son of appellant riding horseback. Before they reached this store and notary, they passed appellant going in the same direction. No conversation is shown to have occurred between any of them, except between appellant and his younger son riding horseback. The mother and two sons, upon reaching the store and notary, produced the affidavit which Mrs. Powdrill signed and swore to before the notary, whose name is J. C. Walker. This affidavit was introduced in evidence, and, after reciting the granting of the injunction in the divorce proceeding prohibiting him from selling any of the property belonging to plaintiff and defendant and that he was duly served therewith, stated that he failed to obey the injunction, but on June 15, 1910, sold and disposed of 13 head of the hogs belonging to them in violation of said writ. Just after Mrs. Powdrill and the notary had concluded this business, Mrs. Powdrill and her sons left his store, going across the street to another store in the little town called Arcadia, and, just as they went out of his store, appellant came into it. Mrs. Powdrill had...