Russell v. State

• Decision Date: 02 February 1898
• Parties: RUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W. 159

RUSSELL v. STATE.

Court of Criminal Appeals of Texas.

February 2, 1898.

Appeal from district court, Fannin county; E. D. McClellan, Judge.

John Russell appeals from a conviction. Affirmed.

James H. Lyday, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years' confinement in the penitentiary; hence this appeal.

The testimony, briefly stated, shows that deceased was a woman, who lived in the town of Honey Grove, Fannin county; that it was rumored, as claimed by defendant, that deceased was having illicit intercourse with a certain negro. The defendant, with one Frank Meyers and Will Arp, was sent down to the house occupied by the deceased about 12 o'clock on the night of the homicide, by the marshal, to ascertain whether or not said negro was there, and, if he was, to arrest, or at least detain, him until he (the marshal) could be sent for. It is shown that the parties went there. Two of them stopped at or near the northeast corner of the house. The defendant in the meantime went to the door, and demanded that it be opened, threatening to break it with an ax. He then kicked it open, and immediately the pistol fired. They immediately left the place, and in a few moments a woman's scream was heard at the house. Some of the neighbors gathered in, and found that she had been shot. She died on the next day. Appellant's theory was that he did not intend to fire the pistol. In kicking the door open, it came open easier than he thought for, and the pistol was accidentally discharged. He thought at the time that he fired too high to hit anybody in the building. This theory was supported by his evidence. Other testimony for the state tended to show that he entertained malice against the deceased, because she had had his friend Stegall arrested a few days before for an assault with intent to rape her; that he went voluntarily on that particular night; and that he broke open the door and fired the shot in the house intentionally. The witnesses for the state show that he made no claim that night of an accident. A witness also testifies that the next day he denied being at the house or shooting into it. The court submitted murder in the first and second degrees, negligent homicide in the first and second degrees, and accidental killing.

Appellant's first, second, third, and fourth bills of exception relate to the exclusion of testimony offered by him, tending to show that the deceased was guilty of illicit intercourse with the negro Charley Thuston; in fact, that said negro was keeping her. The court excluded all of said testimony. Appellant claims that it was admissible for the purpose of showing the good faith of the defendant in going to apprehend the negro at the house of the deceased. If the facts stated are true, it might have authorized the making of an affidavit against deceased and against the negro Charley Thuston by the marshal or any one else, and so authorized the issuance of a warrant under which the parties might have entered the premises of the deceased with some color of right. No warrant was issued, and the parties had no right to go on the premises of the deceased to make this arrest. The testimony in question would have served no legitimate purpose. Notwithstanding the parties had no right to commit a trespass as they did upon the premises of the deceased, yet the court did admit testimony showing the purpose for which they went there; that it was at the instance of the marshal. This was as much as defendant could claim. Nor did the court, in its charge, lay any stress on the illegality of the action of the defendant in going upon the...