Spivey v. State

• Citation: 77 S.W. 444
• Parties: SPIVEY v. STATE.
• Decision Date: 25 November 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

77 S.W. 444

SPIVEY v. STATE.

Court of Criminal Appeals of Texas.

November 25, 1903.

Appeal from District Court, Falls County; Sam R. Scott, Judge.

John T. Spivey was convicted of murder in the first degree, and he appeals. Reversed.

Rice & Bartlett, J. W. Spivey, and Z. I. Harlan, for appellant. Howard Martin, Asst. Atty Gen., and Lewellyn & Connally, for the State.

DAVIDSON, P. J.

This conviction resulted in a life sentence in the penitentiary for murder in the first degree. The killing was unquestionably proved; in fact, there was no issue on this phase of the case. Insanity was the defense. This issue was raised by a great mass of testimony from quite a number of witnesses to the effect that appellant a few months before the homicide had conceived the idea that deceased was intimate with his wife. Deceased had been boarding in the family, and was a young man about 23 years of age. The wife was 47 years old. It may be stated, without summing up the testimony, that there were no facts which to the rational mind would justify such conclusion. Appellant finally caused deceased to leave his house. From the time appellant conceived this idea of the relation of his wife and deceased his whole manner of life seemed to completely change. He continually talked about it. It seemed to be ever present with him when about home. His wife became frightened, and sent for her son, Don Spivey, who had been in the Indian Territory or Oklahoma, to return home. He did so, and acted rather in the assumed position of guardian for his father. He talked with him a great deal about his troubles, and tried to convince him that there was nothing in his statement. Appellant would admit this, and immediately began talking on the same subject again. This was continued until subsequent to the homicide. Among other witnesses summoned were Dr. Graves, superintendent of the lunatic asylum at San Antonio; Dr. Worsham, superintendent of the lunatic asylum at Austin; Dr. Wallace; Dr. Rice; Dr. Allen; and Dr. Sewell. They (except Dr. Wallace) came to Marlin in advance of the trial for the purpose of obtaining data relative to the mental and physical condition of appellant. They had defendant and witnesses before them, made a thorough examination of the antecedents of his family and all the circumstances which tended to throw light upon the subject. The evidence before them was from both sides, state and defense. The examination seemed to be very thorough, and the conclusion reached by these physicians was unanimous that he was insane. They examined appellant in person, talked with him, and heard his statements. Among other things, he proposed to prove by Dr. Graves what was said by appellant to him in regard to the cause of the killing of deceased, which would have been substantially that testified by the wife, son, and father of appellant. This was excluded by the court on the ground that it was irrelevant, immaterial, and self-serving. It was offered for the purpose of producing all the facts upon which Dr. Graves and Dr. Worsham based their opinion as to the insanity of defendant, and as tending to elicit and establish the insane delusion appellant was laboring under as to the infidelity of his wife, and the good faith of his belief as to the supposed adulterous intercourse of his wife at the time of the examination as well as at the time of the homicide. We believe this testimony should have been admitted. Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S W. 344, 39 L. R. A. 305, 330.

Mrs. Spivey was placed on the stand as a witness in behalf of her husband, and testified that about dark after the killing an officer placed her husband under arrest, spent the night at their residence, and left with appellant for the county site the following morning; they were permitted to occupy the same room that night; that they retired about 9 o'clock, but neither of them slept any during the night; that her husband wanted her to come to his trial and testify that deceased had made indecent proposals to her, and she told him she would not do so. He then wanted her to say that Hoffman (deceased) had made indecent proposals to her, and she told him she could not do so; that he further stated that it would go mighty hard with him if witness did not so testify. He did not say what they would likely do with him, and did not state further than that it would go mighty hard with him. He did not mention the punishment of hanging, or any punishment, but just stated that it would go mighty hard with him. He was then under arrest. Subsequently motion to exclude this testimony was made and overruled. The court explains as follows: "This conversation was a part of the same conversation, and took place during the time of the conversation, which defendant was permitted to show had occurred between himself and wife after the killing, though counsel for defendant had not asked witness any questions relative to what defendant stated he wanted her to swear to, nor as to whether he thought he would be punished." This testimony should have...