Redman v. State

• Decision Date: 01 November 1911
• Citation: 149 S.W. 670
• Parties: REDMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 670

149 S.W. 670

REDMAN v. STATE.

Court of Criminal Appeals of Texas.

November 1, 1911.

On Motion for Rehearing, March 27, 1912.

Dissenting Opinion March 30, 1912.

Additional Opinion June 28, 1912.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

C. A. Redman was convicted of murder in the second degree, and he appeals. Affirmed.

Farrar & McRhea, Thos. Ivy, L. C. Hill, and C. F. Greenwood, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On July 2, 1907, the grand jury of Hill county indicted appellant for the murder of J. C. Roberson on May 20, 1907. He was first tried in Hill county in 1907, convicted of murder in the first degree, with the penalty of life imprisonment in the penitentiary. On appeal from that conviction this court reversed the case. It is reported in 52 Tex. Cr. R. 591, 108 S. W. 365. The opinion on that appeal sufficiently states the case to make it unnecessary to make any further general statement thereof now.

After the case was reversed, the venue was properly changed from Hill to Ellis county, where the case was tried in November, 1910, resulting in the appellant's conviction of murder in the second degree, and his punishment fixed at 10 years in the penitentiary, from which last trial and judgment this appeal is prosecuted.

The state has made a motion to strike out the statement of facts and bills of exceptions because they were not filed within the time allowed by law. The term of court in Ellis county was held, as allowed by law, for more than eight weeks. It adjourned for the term on December 3, 1910. The motion for new trial was made and overruled on the day the court adjourned. The court then granted 30 days after adjournment to prepare and file the statement of facts and bills of exceptions. On December 30, 1910, the court granted 30 days from January 3, 1911, and on the latter date again extended the time for 10 days from February 1, 1911. The statement of facts and bills of exceptions were filed within this latter date. It seems to be the contention of the state that only the court in session could make these extensions of the time, and cites the decision of the Supreme Court in Couturie v. Crespi, 103 Tex. 554, 131 S. W. 404. Later decisions by the Supreme Court show that the holding of that court is that, although the wording of the statute is not clear, the intention was to give the power to the judge of the court as well as the court in session, and that, where such statements and bills were filed within the time thus allowed by the court in session or the judge thereof, such statements should be considered and not stricken out. As we understand, there is no difference between this court and the Supreme Court on that subject, but, it being a new statute and all such matters could as well come before the Supreme Court as this court, we would, in this matter, follow the Supreme Court. It, however, is not necessary for us to discuss the question now, as the regular session of the Thirty-Second Legislature (Acts 32d Leg. c. 119, § 7) expressly, in effect, provided that statements of facts filed at any time within 90 days from the perfecting of the appeal, or the adjournment of the court, as the case may be, which would be applicable to felony cases in the district court, should be considered filed in time. So that it is unnecessary for us to further construe the act of 1909 (Acts 31st Leg. 1st Extra Sess. c. 39), as it is no longer in effect in this state. The motion of the state to strike out the statement of facts and bills of exceptions is therefore denied.

Appellant has preserved and presents questions raised by seven bills of exceptions, and complains of some charges of the court upon which he asks this court to reverse the judgment of the lower court.

The first bill shows that, after the trial began and before the evidence was offered, the appellant made a motion showing that on the trial of the case before the jury the state would undertake to prove by Mrs. Roberson, the wife of the deceased, her exclamations during the shooting, and that she was screaming and crying, and begging the defendant not to shoot her husband, and saying to him, "Please don't shoot him any more," and that her little girl was crying and begging the defendant not to shoot her papa any more, and that the defendant desired to object to the same before it was introduced. The objections to this testimony by the appellant were that such testimony was illegal and incompetent, prejudicial to the defendant, and did not tend to illustrate any issue in the case, nor shed light upon the guilt of the defendant. These objections were overruled, the testimony admitted, and the court, in allowing the bill, explained "that the exclamations objected to occurred while the shooting was in progress, and were a part of the transactions."

Mrs. J. C. Roberson, the wife of the deceased, testified that just a few minutes prior to the shooting she saw the appellant and his cousin, Bert Caruth, pass her house, where she was preparing vegetables for her dinner, going in the direction where her husband was plowing in the field, about 240 feet from her doorsteps; that in a few minutes after they passed she heard a pistol fire. She then testified: "I got up and went out on the front gallery to see what it meant. I could see my husband running around the horses' heads, and saw the smoke come out towards him. The horses' heads were turned east. My husband ran around on the north side of the horses, and, after I heard the first gun fire, I went out on the gallery, and saw my husband running around the horses' heads, and saw the smoke, and I ran into the yard, and, as I was near the front gate, heard the second shot that I heard, and, as I was going up the road there were three more shots fired after that, and I saw Redman holding a pistol in his hand, shooting at my husband. I run up the road hollering and screaming for him not to shoot my husband any more. When I stopped, my husband had fallen. I never went to where he was. I stopped before I got there. He had fallen, but did not lay on the ground but just a few seconds, and he got up and steadied himself on his elbow, and then got up and started towards me. When I saw he was not killed, I stopped, and did not go up as far as he was in the field. He started towards me, and defendant turned around, and saw that he was getting up and he began to follow him, reloading his pistol as he followed him. He was holding the pistol in his left hand, and putting in the cartridges with his right. Defendant was about 30 feet away when he saw my husband getting up, and was in about the center of the public road, I think, when he turned around. My husband started angling southwest, and was going towards the house, which was southwest from where he had fallen. There was a barbed-wire fence around the field, but there was a gap in the fence, and my husband had fallen about 25 feet from the gap. The horses ran away immediately after he fell. When defendant turned around and saw my husband get up, he turned, and was walking towards my husband, and the defendant was going in a rapid walk. Defendant turned before my husband got to the gap, but did not start until he had reached the gap. He had seen my husband get up. I said, `Arthur, please do not shoot Johnnie any more.' I said this a half dozen times. I don't know the number of times. My little girl and my baby child were with me at the time. My little girl says, `Please don't shoot papa; please don't shoot papa.' She was right behind me all the time. I guess I was about 25 feet from my husband when Redman passed me going up to him. The defendant made no reply to what I said to him. He never said a word. It is about 115 feet from the gap on the east side to the gap on the west side of the road. My husband went through the west gap, and defendant was about 25 or 30 feet behind him, and it's about 140 feet from this gap to my house. There is a barn just on the inside of the west fence, and about 18 or 20 feet from the gap on the west side, and the barn is a little northeast of the house. My husband went a few steps in the direction of the house, and then turned, with Redman following him, and said, `Go off and let us alone; go off and let us alone,' and he then turned and went a little northwest into the barn; that is, in the seed shed, which was on the east side of the barn. Defendant was then going in at the gap. It is about 25 feet from the gap to the door of the seed shed. The seed shed was on the north side of the barn, and the barn was an old log house with the shed on the east side, and in this shed the door opened out east, and my husband went into this door and held the door to after him. There was nothing on the inside to fasten it with, and there was about six inches of space under the door and some slats to hold the seed in, and he tried to hold the door to underneath the slats. I saw his fingers on the outside there, holding the door to, and defendant walked up and shoved his fingers away, and shot him there four times. I was just on the inside of the gap on the west fence at the time. Me and my little girl were both crying and begging him not to shoot any more. My little girl was saying, `Don't shoot papa any more,' and I would say, `Arthur, please don't shoot Johnnie any more.' The defendant never said a word in reply to anything we said."

We are of the opinion that the court correctly admitted this testimony as a part of the transaction. Jeffries v. State, 9 Tex. App. 598; Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696.

By appellant's second bill he claims that the court erred in permitting, on cross-examination of his witness Bilbry, the state to prove that the deceased was assistant superintendent of the Sunday school at the James schoolhouse, which was near the scene of the killing, and where the Sunday school of the...