Stewart v. State

• Decision Date: 11 December 1907
• Citation: 106 S.W. 685
• Parties: STEWART v. STATE.
• Court: Texas Court of Criminal Appeals

Page 685

106 S.W. 685

STEWART v. STATE.

Court of Criminal Appeals of Texas.

December 11, 1907.

Appeal from District Court, Young County; A. H. Carrigan, Judge.

A. P. Stewart was convicted of murder in the second degree, and appeals. Reversed and remanded.

C. W. Johnson and Kay & Akin, for appellant. F. J. McCord, Asst. Atty. Gen., P. A. Martin, Dist. Atty., and Miller & Dycus, for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and given five years in the penitentiary as his punishment. The facts show that defendant and deceased had been neighbors and friends for over 20 years, living in the same neighborhood.

The state's case is, in substance, that on the 17th of January, 1907, appellant killed the deceased Rutherford. Mrs. Workman was the only eyewitness to the homicide, and testified that she, her husband, J. E. Workman, and their two children had just arrived in Young county from the Indian Territory, and had bought some land from the deceased and moved out to it and unloaded their wagon, preparatory to erecting a temporary camp. Deceased had gone with them to the place of their camp for the purpose of repairing a fence between his (deceased's) land and that purchased by the husband of witness. This camp was about three-fourths of a mile northwest of the home of deceased, and about 75 yards west of witness' east fence. This fence marked the boundary between witness' land and that of the deceased. Deceased left the camp and went to the southeast corner of witness' land, and she went about arranging her household matters, her husband busying himself by fixing the fence on the north and east of the camp. After her husband had finished this job, he returned to the camp, and with his wagon started in a westerly direction to haul some water to the camp. Just at this juncture the witness' attention was attracted by hearing some one holloing, "Hey! hey! hey!" She turned and called her husband, and sent her little girl for him. Then, looking east, she saw deceased running in her direction and hollowing to the witness, "For God's sake, bring me a gun." She ran to the other side of her camp, picked up an automatic shotgun, and a breach-loading shotgun, and started to the deceased with both guns, and as she started she saw appellant for the first time, who was also running towards the camp. Witness saw no weapons in appellant's hands at that time. The men were not running from the same direction, appellant being north of deceased. Witness here made a map and gave it to the jury which showed the appellant and deceased were both approaching the camp, their line of approach being to a common center, leaving the tracks, as in the diagram, as they approached the camp in the shape of the letter "V." The map indicates that the horse of appellant was hitched to the fence above the gate, and that appellant apparently came from the gate towards the camp. The distance from the gate and where the horse was hitched to the fence was not given, but it formed the opening part of the letter "V," the point of it being at the point of contact between the parties. Witness ran to the deceased with the two guns. Deceased ran up to witness, threw his arms about her, and held witness between himself and appellant. Witness was still holding the guns in her hand between her body and the deceased when appellant began firing with a pistol over the witness' head and shoulder at the deceased. Deceased was struggling to keep witness between appellant and himself, and was moving around for this purpose. It threw deceased facing appellant, with witness' back to appellant. Deceased stooped in his efforts to keep the witness between himself and appellant, and after being wounded sank to his knees and turned witness loose, and the firing ceased. Up to this time not a word had been spoken by any of the parties, except when the deceased called to the witness to bring the gun. While on his knees after being shot, deceased reached out his hand, and said to appellant, "Forgive me." Appellant came up, and they shook hands. The deceased then said to witness, "Pray for me," and asked for water. When witness returned with the water, deceased was lying on the ground, and by this time the husband and son had arrived. The deceased never spoke after his request for prayer and water, and lived but a few moments. Appellant was asked, "What on earth did you do this for?" He replied that deceased had done him the dirtiest crime that one man ever did to another. At the time witness first saw the parties they were inside of her husband's inclosure, about halfway between the camp and the fence. This would seem to indicate that the fence was probably 75 or a 100 yards from the camp. Deceased was a large man of heavy build, strong and healthy.

The husband, J. E. Workman, testified about their moving to the camp, and stated that his son had been at the gate, working on the fence just southeast of the camp. Witness had made repairs on the fence just north of the camp. While working on the fence, witness saw a man riding on the prairie, on a bay horse, some 300 yards southeast of where witness was at work. The man stopped, looked towards witness' camp, and then turned southeast toward a little field, and rode out of sight. He finished his work, went to the camp, got some vessels, put them in his wagon, and went off west in a trot to haul water to camp. After witness had gone 200 or 300 yards, he heard his wife and little daughter screaming and holloing, "Fire!" saw his little daughter coming toward him, turned his team around, and drove rapidly back. Arriving at the camp he saw appellant standing about 10 feet from his wife. Did not see deceased at that time. Appellant had a pistol in his hand, and was probably loading it or extracting shells. Witness then saw a man lying on the ground, and said, "Who shot him?" Appellant said, "I shot him." Appellant pointed to the guns, and said, "Look there, see those guns?" "I had to shoot him. I would not have shot him if she had not brought those guns." Witness then turned deceased over, and discovered it was Rutherford, and remarked, "What on earth is the matter?" "I thought you and Mr. Rutherford were the very best of friends." Appellant replied, "We have been close neighbors for the past 20 years, but he has done me the dirtiest crime that one man could do another." Appellant was pale and excited. Witness afterwards found deceased's horse near the southeast corner of witness' place near the fence, and witness said that appellant had told him that he had gone to deceased to talk to him about it, and that deceased would not talk to him, and that deceased wanted to settle it with the guns. Witness did not tell this at the examining trial. Witness said to appellant, "I certainly hate this," and appellant said, "You do not hate it half as bad as I do. I would not have shot him if she had not brought those guns."

There are some other details in regard to facts that may be necessary to state in the illustration of some questions. The defendant introduced his wife. Her testimony is to the effect that on the morning prior to the homicide in the evening she was at her home up stairs; that defendant came into the house looking for her, came up stairs and found her crying, and urged that she tell him the cause. That she then related to the defendant the following: "That on the afternoon of July 6, 1906, witness went to the mail box to get the mail. Witness did not look at the clock, but thought it was between 3 and 4 in the afternoon. That just as witness reached the fence near the mail box she heard deceased say: `Wait, Mrs. Stewart, I'll get your mail for you.' Deceased then got the mail for witness, and handed it to her over the fence, deceased being at that time in the road. Witness then took the mail. She was riding a boy's saddle and sideways. She then turned her horse around to go home. After turning around toward home she stopped her horse because there was a considerable quantity of the mail and she desired to tie the mail on the saddle. While tieing the mail on the saddle deceased pushed down the wire fence and stood on it and led his horse across the wire and came up behind witness and asked if he might go part of the way home with witness and at the same time took hold of witness with both arms around the waist and dragged witness off her horse and drew witness up to his breast. Witness said, `Mr. Rutherford, you are seeking trouble,' and tried to push loose from him. Deceased said, `No, I am not seeking trouble, but one wife is not enough for me, and I want to borrow Pick Stewart's wife awhile.' Witness then said that if deceased did not turn her loose that she would scream. Witness was struggling all the time deceased held her. Deceased said, `What are you going to do about it?' Witness said, `I am going to tell Pick [appellant] just as soon as I can find him.' Deceased then said, `Don't you dare do it' [pointing his finger at witness]. Witness said, `I will tell him as soon as he gets home.' Deceased then said, `Don't you do it. I will be ready for him. If he can get a gun any quicker than I can, he is welcome to use it.' Witness then started to get on her horse, and deceased asked if he might help her. Witness told deceased that he must not touch her again. Deceased then went off through the fence like he had come in." This was detailed as the matter which she had related to her husband on the morning of the day of the homicide. The state then took her up on cross-examination rather fully and rigidly, asking many questions as to why she hadn't told her husband prior to the 17th of January when this thing should have occurred on the 6th day of July previous. The matters developed on cross-examination may be more fully stated in disposing of a bill of exceptions later.

The state's cross-examination of appellant's wife took a wide range, mainly for the purpose of discrediting the...