Smith v. State

Decision Date25 June 1904
Citation81 S.W. 936
PartiesSMITH v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Bell County; John M. Furman, Judge.

Catherine M. Smith was convicted of murder, and she appeals. Reversed.

John B. Durrett and R. B. Seay, for appellant. Jno. D. Robinson, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant, Catherine M. Smith, was jointly indicted with T. E. Smith, her husband, and Addison Smith, her son, for the murder of I. B. Grubbs, deputy sheriff, on the 6th of August, 1903. Appellant was granted a severance, and upon trial was convicted; her punishment being assessed at 25 years in the penitentiary, for murder in the second degree.

The evidence adduced is substantially as follows: Appellant and her husband were joint defendants in a civil suit foreclosing a mortgage lien upon their property in favor of the Union Trust Company. After the mortgage was foreclosed, one Brooker had the judgment transferred to himself. Subsequently the property, so far as the interest of defendant and her husband was concerned, was transferred to A. J. Harris, in trust to secure a loan to pay off the foreclosed mortgage. Harris joined with defendant and husband in executing to said Brooker a deed of trust on the growing crops for the year 1903, stipulating that the mortgage lien should not be affected in any manner whatever, and, on failure to comply with the stipulations of said last instrument, Brooker had the right to foreclose the mortgage as per the terms of the judgment. Harris, defendant, and husband failing to comply with the terms of the instrument they executed to Brooker, a writ was issued on the judgment, properly advertised, sale made, and Brewster Bros. bought the land upon which the homicide occurred. On July 16th, the deed having been made to the said Brewsters, or rather to their vendee, Hall, Brewster had the officers, Ike Grubbs and J. E. Sparks, deputy sheriffs, to go to the premises and put appellant and husband off of the same; being for the benefit of said Brewsters and Hall. The officers left some effects upon the premises—a hog, some grain in the shock, chickens, and perhaps a few other articles. This act was performed by deceased, Ike Grubbs, and J. E. Sparks, deputy sheriffs of Bell county. On the next day after the Smiths were ousted of the premises, they returned and took possession of the house upon the land in controversy. On August 6, 1903, deceased and Sparks returned to the premises to dispossess the Smiths by virtue of the same writ under which the former dispossession took place, having the writ in their possession at the time. Five wagons had preceded them to the home of defendants, and, a short while after they arrived there, the officers above named came up. While one of the officers was hitching the horses (they having come in a buggy), appellant's husband approached deceased, stating he came out "under a flag of truce." Deceased informed him he would have to dispossess him anew, and appellant's husband protested against this; saying he thought, and had been informed by his lawyers, that the writ of possession could not be used the second time for that purpose. After some parleying over this question, the officers got between appellant's husband and the house, and deceased, Grubbs, started towards the door of the cottage; the husband following and attempting to get into the house before the officers. Sparks caught T. E. Smith and detained him; and at this juncture Grubbs entered the house. He opened the screen door, and it slammed behind him. In a few moments a gunshot was heard, and then another shot. Sparks drew his pistol—T. E. Smith being behind him—and, when he attempted to draw his pistol Smith grabbed it, and Sparks hallooed, "Ike, Ike," being the given name of deceased officer. No answer came in reply to this call. At this juncture appellant and her son Addison came out on the gallery—appellant with a shotgun, and her son with a rifle. Appellant remarked: "I told you I would fight for my home." She demanded of Sparks that he turn her husband loose. The husband replied: "Don't shoot. You will shoot me." After some colloquy between Sparks and T. E. Smith, Smith turned Sparks' pistol loose. Sparks asked appellant if Grubbs was dead. She replied that he was, and that he (Sparks) would be dead if he did not get away from there. The state proved by various witnesses that T. E. Smith, after the first dispossession, secured a magazine shotgun, another shotgun, and a 32 Winchester rifle. These were in the house at the time of the homicide. The house consisted of four rooms—fronted east, two rooms in front, and immediately back of these two more—with a gallery in front nearly the whole length of the house. The killing occurred in the southeast room, which was about 14 feet square. There was a door in this room, leading onto the gallery, and also a window opening on the gallery, a door in the south end of the room, and a door in the partition between the two front rooms. There was a table somewhere near the center of the room, and a bed in the southeast corner. To get to the window opening on the gallery, it would be necessary to be on the bed. Sparks testified that he saw defendant Addison Smith on the bed just before the shooting.

The only eyewitnesses to the shooting were appellant and her son Addison. After detailing the coming of the officers and other matters substantially as stated, Mrs. Smith testified: "When I saw the officers approaching, I said to Mr. Smith and Mr. Sanders: `There are the officers now.' Mr. Sanders and Mr. Smith went down to where they were, at a point southeast of the house a short distance. I sat down on the bed by my boy, and in a little while I noticed that Mr. Sanders was not with them any more; and I got up and went to the south window, and looked out to see if I could see where he was. I then walked back to the door, and saw Mr. Smith and the officers standing down by the front fence, talking. I then walked back to the window, and back again to the door. When I got back to the door, I saw the officers running around, keeping Mr. Smith from coming to the house. It looked to me like they were trying to catch him. This frightened me, and I ran to the east window, so that I could see out of the east window from the bed; and when I got there I saw Mr. Sparks and Mr. Smith close up to the gallery, south of the steps, and Mr. Sparks had a pistol in his hand, and Mr. Smith grabbed it. I thought at first it was a pair of handcuffs they were trying to put on him. In an instant I saw it was a pistol, and that Mr. Smith had caught it by the barrel. When I saw this I started at once to the door, to get out there. When I got pretty well to the foot of the bed, Mr. Grubbs rushed in at the door, and took a step toward me. I did not see him open the screen door. He rushed in right on me. I was not looking for him. When I saw him start toward me, I threw up my hands, and said: `Don't you touch me. Don't put your hands on me.' About this time he saw a gun that was lying on the table, right close to the foot of the bed and to my right, and started for it. When he started for the gun, I grabbed it, and he sort of stepped and caught me and the gun, and we commenced scuffling over the gun. He tried to take the gun away from me, and I held onto it, and he forced me back against the wall, near the north partition door, and the gun went off between us, and he fell to the floor and dragged me with him. I fell over the back of a rocking chair, west of the partition door. I was terribly frightened and struggled up, and stood against the partition wall and looked down at him. I saw he was dead. I saw the wound in his head. The blood spurted from it, and brains were scattered on the floor. I saw particles of his brains, about the size of a piece of lead pencil, spattered on the front of my dress, on my breast. I tried to brush them off. At the time I told Grubbs not to touch me, his face looked so angry. He had been so kind and good to me when he was there before that I hardly knew him, the way he looked when he started to me. I did not point the gun at him, or attempt to shoot with it. I did not have time to do anything with it. He caught me so quick. The moment he caught the gun he commenced trying to take it away from me, and I was holding onto it with all my might. My son Addison was lying on the bed, with his head towards the window, the last time I saw him before Grubbs came in the door. I do not know what he did when Grubbs came in the room, or what he did while we were struggling. I have no recollection of getting a gun and going out on the gallery and ordering Mr. Sparks to turn my husband loose. I heard all the testimony in this case, and heard the testimony on habeas corpus trial, and I feel sure, from what I heard, that I went out on the gallery, and that I had the gun as they say I did, but I have never been able to recollect anything more than I have told. I did not have any malice or unkind feelings toward deceased or Sparks when they came out there that morning." This is the substance of the defense testimony in reference to the killing. There are some minor details which we do not deem necessary to state. The undisputed evidence on the part of the state is that deceased was killed with a shotgun, part of the buckshot having been found in his head, and part of the wadding of the gun. The proof also shows that the discharge from the Winchester, in the scuffle detailed by Mrs. Smith, went in the wall about four feet from the floor, and evidently did not cause the death of deceased. The entire side of deceased head was shot off, and his brains were scattered on the floor.

There are 53 bills of exception in this record. We will discuss those which we deem necessary for a proper disposition of this case.

By bill of exceptions No. 1, the state was permitted to prove by the witness S. M. Dodd,...

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  • State v. Dunlap
    • United States
    • Idaho Supreme Court
    • April 25, 1925
    ... ... premeditation and malice created against him by the testimony ... of the witness Bell as to the loaning of the shotgun to ... appellant on the morning in question. The refusal of such ... permission by the court is reversible error. (State v ... Shuff, 9 Idaho 115, 72 P. 664; Smith v. State, ... 46 Tex. Cr. 267, 108 Am. St. 991, 81 S.W. 936; Crawford ... v. United States, 212 U.S. 183, 15 Ann. Cas. 392, 29 ... S.Ct. 260, 53 L.Ed. 465; Spicer v. State, 188 Ala ... 9, 65 So. 972; People v. Smith, 151 Cal. 619, 91 P ... 511; State v. Rutledge, 135 Iowa 581, 113 N.W. 461; ... ...
  • State v. Patton
    • United States
    • Missouri Supreme Court
    • February 17, 1914
    ...announced, and the cases cited do not, except in the most remote principle, bear out the rule. The case of Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 1001, which was a Texas case, is almost in point, except that the witness whose memory was refreshed by the grand jur......
  • Wynn v. State
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    • Texas Court of Criminal Appeals
    • November 23, 1949
    ...67 S.W. 320; Baker v. State, 45 Tex.Cr.R. 392, 77 S.W. 618; Chapman v. State, 45 Tex.Cr.R. 479, 76 S.W. 477; Smith v. State, 46 Tex.Cr.R. 267, 81 S.W. 936, 108 Am.St.Rep. 991; Banks v. State, 52 Tex.Cr.R. 480, 180 S.W. 693; Hunter v. State, 54 Tex.Cr.R. 224, 114 S.W. 124, 130 Am.St.Rep. 887......
  • Burnett v. State
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    ...above). See, also, Rainey v. State, 20 Tex. App. 455; Harrison v. State, 20 Tex. App. 387, 54 Am. Rep. 529; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991." Other illustrations of the rule will be found in Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Allen v......
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