Stullivan v. State

• Decision Date: 22 February 1905
• Parties: STULLIVAN v. STATE.
• Court: Texas Court of Criminal Appeals

85 S.W. 810

STULLIVAN v. STATE.

Court of Criminal Appeals of Texas.

February 22, 1905.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Robin Stullivan, Jr., was convicted of murder in the first degree, and he appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the first degree, under a plea of guilty, and his punishment assessed at death.

The record discloses that the requirements of article 554, Code Cr. Proc. 1895, were followed; and it is made to appear that appellant was sane, and uninfluenced by any consideration of fear, persuasion, or delusive hope of pardon, prompting him to enter his plea of guilty. A jury was impaneled and evidence introduced as required by article 555. The court submitted only murder in the first degree. The statement of facts discloses that, while deceased (appellant's father) was lying asleep in his bed, appellant shot him with a Winchester rifle. The bullet entered just under the eye, and lodged in the back of his head. At his examining trial, appellant, after being properly warned, made a confession in writing, in which he admitted the killing of his father about 10 o'clock on the night of July 24th. In that confession he states that his father had previously threatened to kill him, and that was the basis of his action. He says he had determined to kill his father; that after his father went to sleep he went into the adjoining room, and to bed with William Spillman. About a half-hour later he got up, went into the adjoining room, where his father was asleep, got a Winchester rifle off the shelf near his father's head, went around to the foot of the bed, and shot him to death. The above is the testimony of the examining magistrate. The sheriff testified that while appellant was in his custody he warned him, and, after such warning, appellant made a statement to him. The substance of it is this: Appellant borrowed 25 cents from Mrs. Roberts, and bought 15 cents worth of whisky of Jennings, on the Saturday before the killing on Sunday night, and tried to get strychnine from Dr. Cooper to put in the whisky, for the purpose of poisoning his father. He failed to secure the strychnine. He further stated that on the night of the killing, after his father went to bed, he (appellant) got up, secured his father's gun, went to the foot of the bed, and shot him while he was asleep. He then went over and told his uncle Isom that some one had murdered his father. Dr. Cooper states that appellant came to him on Saturday before the killing to buy a dime's worth of strychnine to kill cats and coons. The doctor concluded not to let him have the strychnine, and returned appellant his money. He did not state to Cooper that he desired to kill his father. Mrs. Roberts stated that appellant borrowed the quarter of a dollar from her, but made no statement as to what he wanted with it. Jennings testified that he sold appellant the 15 cents' worth of whisky on Saturday before the killing. Spillman, who occupied the same bed with appellant the night of the shooting, testified that he had heard defendant say he was going to get the quarter of a dollar from Widow Roberts, and get 15 cents worth of whisky and some poison from Dr. Cooper, and put it in the whisky, and, if that did not fix him, he would fix him another way. Appellant did not mention his father's name. This witness was sleeping with appellant on the night of the homicide, but did not hear the firing of the gun. In addition to the plea of guilty, this is the state's case. Appellant testified: That on Sunday evening before the killing he was carrying a bundle to his uncle's. His father called him back. Appellant failed to return, and his father got mad and "said he would have me in my grave by to-morrow morning. I was afraid of him. I went to bed that night, and got to dreaming, and dreamed that my father was trying to kill me. Knowing where the gun was, I got the gun while asleep and shot him; and, when the gun fired, it waked me. A light was burning in my father's room. The ball hit under the eye. He was lying with his head on his left hand. I did not want to kill him. He was cruel to me, and beat me over the head with a piece of iron, and knocked me down and kicked me for a while, and often beat me over the head with cudgels." On cross-examination he says: "Yes, sir; the lamp was burning in my father's room when I shot him. I got the gun off the shelf near my father's head, and went round to the foot of the bed, and my father seemed like he was about half awake when I shot him; lying with his head propped under his left hand. I went over and told my uncle Isom Stullivan that some one had murdered my father. I did not tell him that I had killed him." The general reputation of the deceased was shown by appellant, to the effect that he was cruel to his family. The state, in rebuttal, showed that deceased was very kind to his son. Richardson and Battle testified to their knowledge of the relations between the father and son—that the father was kind to the son, and they knew of no trouble existing.

The court submitted murder in the first degree, and further authorized them to acquit, under appellant's testimony. The only question raised for our consideration is the failure of the court to charge reasonable doubt as to the defendant's guilt. We are of opinion that this was not error. If there was any error in the court's charge, under the conditions of this record, it was in authorizing the jury to acquit appellant on his statement. It is more than remarkable that a party who was sound asleep, under the impulse of a dream and while asleep, would secure a gun, and with such accuracy detail the statement of all that occurred while he was asleep, in regard to all his movements and the facts attending these movements, including the homicide, the position of the deceased, and other matters about which he testified. We do not believe the charge given was called for. It would not have been error to omit a charge on appellant's testimony. It is a familiar rule that, where...