Spears v. State, 24224.

Decision Date19 January 1949
Docket NumberNo. 24224.,24224.
Citation216 S.W.2d 812
PartiesSPEARS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Midland County; G. C. Olsen, Judge, sitting for Cecil C. Collings, Judge, 70th Judicial District.

Armo Spears was convicted of unlawful killing, and he appeals.

Reversed and remanded.

T. D. Kimbrough, of Midland, and Henry Russell and James D. Willis, both of Pecos, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of the unlawful killing of Robert L. Wallace and given a term of 15 years in the state penitentiary.

The facts show that appellant and his wife, Lorene Spears, had been divorced on August 25, 1947, and the custody of their six-year old child had been awarded the wife; that on October 12, 1947, in the nighttime, the deceased was in the home occupied by Mrs. Lorene Spears, and evidently seated therein, when some one shot him with a large caliber pistol, the bullet going in at an angle into his right eye and ranging through the head at an angle of about 30 degrees, and from this wound he soon expired. Appellant fired this shot evidently from the outside of the house and through a screen door. Mrs. Lorene Spears was present, but was not used as a witness, she having re-married appellant on December 3, 1947, about 52 days after this homicide. She did not testify on the trial, but appellant admitted that he shot the deceased from outside the screen door after deceased had partially raised up from a sitting position as if to attack him.

There are twelve bills of exception noted in the record, the majority thereof depending upon a certain cross-examination of appellant by the State wherein he was caused to say that he had previously lived in Ector County, and had been married at such time; that he had an adopted child; that this first wife divorced him and some few days thereafter he had married the present wife, Lorene, who was eighteen years old at such time and was his housekeeper.

Appellant's defense to this homicide was self-defense, that is, he was present outside the house of his divorced wife for the purpose of seeing his seven-year old baby girl and also in an endeavor to effect a reconciliation with his divorced wife, Lorene, and as he approached the house, he heard some talk and Lorene said, "There he is now"; that the deceased was rising up from his seat in a crouching position and he shot him, the bullet going through the screen and into the right eye of the deceased, ranging downward at about a 30-degree angle.

While the matter of appellant's marital troubles could...

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3 cases
  • Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70
    • United States
    • U.S. Supreme Court
    • January 23, 1967
    ... ... See Spears v. State, 153 Tex.Cr.R ... Page 562 ... 14, 216 S.W.2d 812; 1 Wigmore, Evidence § 29a (3d ed. 1940); Uniform Rule of Evidence 45; Model Code ... ...
  • Wilbanks v. State
    • United States
    • Alabama Court of Appeals
    • November 6, 1962
    ...v. State, 168 Tex.Cr.R. 320, 327 S.W.2d 745; Johnson v. State, 164 Tex.Cr.R. 204, 298 S.W.2d 132, 62 A.L.R.2d 1064; Spears v. State, 153 Tex.Cr.R. 14, 216 S.W.2d 812; Sample v. State, 158 Tex.Cr.R. 220-222, 254 S.W.2d 401; People v. Betts, 94 Mich. 642, 54 N.W. 487; State v. Powell, 120 Kan......
  • Sample v. State, 26189
    • United States
    • Texas Court of Criminal Appeals
    • January 28, 1953
    ...Tex.Cr.R. 41, 35 S.W. 380, reversed convictions where such proof is made. A full review of the authorities may be found in Spears v. State, Tex.Cr.App., 216 S.W.2d 812. The converse of the situation here presented was before this Court in the very recent case of Bodiford v. State, Tex.Cr.Ap......

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