Ray v. State

• Decision Date: 20 December 1916
• Docket Number: (No. 4311.)
• Parties: RAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1111

190 S.W. 1111

RAY v. STATE.

(No. 4311.)

Court of Criminal Appeals of Texas.

December 20, 1916.

Rehearing Denied January 17, 1917.

Appeal from District Court, Titus County; J. A. Ward, Judge.

Tom Ray was convicted of murder, and he appeals. Affirmed.

John A. Cook and T. C. Hutchings, both of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.

Appellant and deceased lived near neighbors and had been friendly until just a few days before appellant killed deceased. The road from town to deceased's passed by appellant's In going from town home deceased had to pass along this road. The Sanders were renters of deceased, and also lived near. A few days before the killing a horse of the Sanders had died, and they and appellant buried it in a branch, on which deceased had a sorghum mill, and it was necessary for him to use the water from this branch in connection with making sorghum The dead horse greatly polluted the water. Deceased instituted a criminal prosecution against the Sanders for burying said horse where they did. They told appellant that deceased had also prosecuted him for the same thing. This greatly incensed appellant and made him mad at deceased. Appellant went to town with the Sanders on Saturday evening before the killing that night. The deceased and his two grown sons were in town also that evening. Appellant learned deceased was in town, and, according to the state's testimony, hunted him up and had a talk with him, wherein he accused deceased of prosecuting him about said horse, which deceased denied. As a matter of fact, deceased had not prosecuted him, but had instituted criminal proceedings against the Sanders. At this time appellant cursed deceased, according to the state's witnesses, and said to him: "You G____ d____ son of a b____. I will see you to-night" — and, it seems, had his open knife in his hand at the time. Thereupon one of the Sanders who was with him told him not to do that, and he desisted. Another state's witness, in substance, testified that appellant on this occasion said: "If I don't get him to-night or this evening, I will get him to-morrow." Soon afterwards, and before night, appellant went home. Deceased and his two sons did not leave town for home until night. The state's witnesses testified that as deceased and they were passing appellant's house going home that night, appellant hailed deceased, had him to stop, stating he wanted to see him. He got his razor out of his trunk at the time, and took it with him when he went down to see deceased. That appellant again accused deceased of prosecuting him about said horse, which deceased denied; and that, without deceased doing anything, appellant put one foot up on the hub of the wagon, got up, caught deceased with his left hand, and with his right cut deceased's throat from ear to ear with the razor, from which deceased died in a few minutes. Deceased's wagon then went on home. Appellant returned to his house, waited a few minutes, went to the Sanders', and in going threw away his razor. He had the Sanders to telephone for the sheriff to come and get him. According to the appellant and his wife and mother's testimony, deceased called appellant out to his wagon, stating that he wanted to see him, and appellant acted and cut deceased's throat in self-defense. His self-defense was submitted fully in the court's charge to the jury, and, with ample evidence to sustain the finding, the jury found against him on this issue.

Appellant has several bills of exceptions to the admission and exclusion of very brief portions of testimony. It is unnecessary to take them up separately. A witness may testify that another was mad, from his tone of voice. 1 Branch's An. P. C. pp. 73, 74.

Appellant has a bill showing he objected when the state asked one of its witnesses to state to the jury: "If you heard him say anything in reference to Mr. Daniels, tell what it was." To which question and answer he objected, and the witness answered:

"Well, sir, I don't know if it was Mr. Daniels he was talking about or not; but I heard him say that if he didn't get him to-night or this evening, he would get him to-morrow."

This is, in substance, the whole of the bill, except his objections, which were because same did not show that the defendant was talking about deceased, and it was prejudicial to his rights and inadmissible. The state objects to the consideration of this bill because it is wholly insufficient under the long and well-established rules announced and adhered to by this court to authorize its review. The state's contention is correct. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S....