Schauer v. State

• Decision Date: 12 December 1900
• Citation: 60 S.W. 249
• Parties: SCHAUER v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 249

SCHAUER v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1900.

Appeal from district court, Tom Green county; J. W. Timmins, Judge.

Otto Schauer was convicted of murder, and he appeals. Reversed.

W. A. Wright, J. W. Hill, Banks & Cochran, and Jenkins & McCartney, for appellant. B. W. Rimes, Sims & Snodgrass, S. E. Taylor, Co. Atty., W. M. Walton, and Robt. A. John, Asst. Atty. Gen., 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 homicide for which appellant was convicted occurred on the evening of November 2, 1898, in the pasture of appellant. In order to a correct understanding of the case, a map or plat of the scene of the homicide is here set out:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plat shows the points of the compass, and indicates, not only the place of the homicide, but the surroundings, including the appellant's pasture and parts of deceased's two pastures. A represents appellant's house, and the roads through his pasture are represented by lines. The windmills are represented by the letters B, C, and D. H represents the point where appellant and Murray were when they first observed deceased riding towards them on the road at the point E. F represents the place of meeting, and where the homicide occurred. The public road through the pasture is marked "Public Road," and the private roads through the pasture leading to the windmills are marked "Private Road." A grudge of some weeks' standing existed between the parties, occasioned by a rumor connecting defendant (a married man) in improper relations with the stepdaughter of deceased. Evidently deceased believed these rumors, and had made threats against defendant. Some month or six weeks before the homicide appellant sought an interview with deceased to explain the matter and have an understanding. At the instance of appellant a meeting occurred, and deceased charged appellant with illicit relations with his stepdaughter, and denounced and abused him, assaulted him, and drew his knife upon him, and made him promise to leave the country within 10 days. A short time after this appellant instituted proceedings before a justice of the peace, and had deceased put under a peace bond. Subsequently deceased is shown to have made threats against appellant's life, and to have stated in that connection that he did not care for the peace bond; that when he met appellant he would kill him. It appears that on the morning of the day of the homicide deceased had gone from his home place to his west pasture; his ordinary route being along the public road, through the pasture of appellant (though the record does not show that appellant knew he had gone to his pasture on that day). Some time during the evening of the 2d day of November, about 1 or 2 o'clock, appellant, with two of his employés, Hoy and Murray (the latter of whom had been employed by appellant as his bodyguard pending the troubles which had arisen between defendant and deceased), are shown to have left appellant's house for the purpose of driving some horses in the pasture. After these parties reached the first windmill, something over a mile from appellant's house, Hoy separated from them, appellant and Murray proceeding down along the private road which led towards the west windmill. When about two miles from home, and near the point F (where the homicide occurred), appellant and his companion discovered deceased riding along the road they were traveling, towards them. When they first saw him, his horse was in a lope, but he checked his horse, and pursued his course in a trot. When they met, according to the testimony of defendant (who was the only eyewitness testifying to the homicide), deceased made a demonstration, and drew his pistol, and fired on him. Appellant at once drew his gun, and fired on deceased. Four shots are shown by defendant's evidence to have been fired,— two of these are attributed to deceased, one to defendant, and one to Murray. Deceased fell from his horse, and the testimony shows he was shot through from the left side, some seven buckshot going through his body, penetrating his heart. It is also shown that deceased had one 45-caliber shot through his head, which penetrated his eye, lodging in the back of his head. The state introduced some testimony tending to show the nature of the country around the scene of the homicide, its topography, and growth of mesquite trees, which, it was insisted, would conceal a man; the theory of the state suggesting a lying in wait on the part of appellant. Appellant's theory was self-defense, predicated on threats and the casual meeting at an unexpected place between him and deceased, and that deceased, when they met, made a hostile demonstration against him, which caused him to apprehend danger to his life, and that he shot deceased in self-defense. With this statement of the case we will take up appellant's bills of exception,—at least, such as we consider important,—and discuss them as presented.

Appellant offered to prove by his witness J. J. Neal that he was sent by him to interview Cole (deceased), and that he made to the latter, on behalf of appellant, a proposition that he (Cole) should withdraw the threats previously made against appellant by Cole, and that if he (Cole) did not want to be neighbors any longer, or speak to defendant, he might refrain from doing so, only promising that he would not harm or hurt defendant, or carry his threats into execution, and that defendant would not harm or hurt Cole. This testimony, on objection by the state, was excluded. In this we believe the court erred. It had already been shown that Cole had repeatedly threatened the life of appellant, and that he had assaulted him, and required of him a promise to leave the country; that a peace bond would not have any effect. We think it was important, to show appellant's state of mind towards deceased at the time of the meeting, to show, in that connection, that he had previous to said meeting made overtures for a peaceful settlement with deceased. Such testimony would tend to show both the state of deceased's mind as well as of appellant's, and would tend to shed some light upon the question as to who was the aggressor when the fatal meeting occurred. It would be no answer to this proposition to state that such testimony was self-serving, and might be fabricated. Everett v. State, 30 Tex. App. 682, 18 S. W. 674; Butler v. Same, 33 Tex. Cr. R. 232, 26 S. W. 201.

Appellant's second bill questions the action of the court rejecting certain parts of the deposition of the witness Clomer Holden, as to the contents of certain letters written by defendant to her. The bill itself we do not regard as sufficiently specific. It does not point out any particular letter or letters by date, etc., nor does it show the verbal contents of such letter or letters. The mere conclusion of the witness would, of course, not be admissible. If the contents of the letter were admissible at all, the verbiage...