Wade v. State
| Citation | 227 S.W. 489 |
| Decision Date | 14 January 1920 |
| Docket Number | (No. 5572.) |
| Parties | WADE v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
J. H. Wade was convicted of murder, and he appeals. Reversed, and cause remanded.
J. F. Taulbee, of Georgetown, and White, Cartledge & Wilcox, of Austin, for appellant.
Critz, Lawhon & McNair, of Taylor, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
Appellant stands condemned to confinement in the penitentiary for the period of five years for murder. He and deceased were neighbors, a division fence separating their farms. A reversal is sought upon the ground that the evidence does not justify a verdict of murder.
On Friday evening, immediately preceding the Tuesday on which the homicide occurred, an altercation took place in which the deceased and appellant were parties. A statement of the details is unnecessary, but from the state's testimony offered the deceased applied an insulting epithet to the son of appellant, shortly thereafter expressing his regrets for having done so to the appellant. In the course of the affair appellant's son threw rocks at the deceased and the deceased drew his knife.
The homicide took place at the next meeting. This meeting occurred under the following circumstances: The appellant put some posts in his wagon, also his shotgun, and he and his son went to the division fence with the intention of making some repairs or changes in it. The deceased, who was at his house, some 500 yards distant from the fence, observing the approach of appellant, desisted from loading his wagon with cotton, and came to the fence accompanied by his two sons. When the deceased reached a point near the fence a wordy altercation took place, in which the deceased, claiming that the fence belonged to him and that the appellant had no interest in it, demanded that appellant should desist from interference with it. Appellant assumed a contrary position, expressed his intention to proceed with his work, and, according to the state's testimony, while the deceased was standing on his own land, some six feet from the fence, the appellant called him a son of a bitch, and reached in his wagon for his gun; that up to this time the deceased had made no demonstration, but when this occurred he picked up a rock of considerable size and hurled it at the appellant, who at the time was some 36 feet distant. The appellant immediately threw up his gun and fired one shot, four buckshot from the gun striking the deceased in the head, and causing him to fall at once and shortly thereafter to die.
The evidence coming from the appellant and his son was to the effect that after throwing the rock at the appellant the deceased approached him; that the appellant warned him to stop when the deceased called the appellant a son of a bitch, and reached under his coat, apparently after a gun. Appellant claimed to have been more or less disabled by some ailment in his back, and that on Sunday preceding the homicide he had seen the deceased walking along the division fence, and on the following Monday had seen him cutting vines which were near it, and that he (the appellant) went to the fence for the purpose of cutting the vines from his side of the fence and making repairs upon it, and that he armed himself because the deceased had on the occasion of the previous difficulty threatened his life; that immediately before the shot was fired the deceased, responding to the appellant's warning to stop, had said, "I will kill you, you son of a bitch," and that the shot was fired because the appellant believed the deceased was going to shoot him, and not because the rock was thrown, nor because of deceased's insulting language; that if the deceased had not approached him in a threatening maner, with his hand under his coat, the shot would not have been fired.
The appellant was 48 years of age, and bore a good reputation. The deceased and his sons who were with him were unarmed, there was some conflict as to the exact position of the parties and touching the conduct of the appellant thereafter with reference to his attitude towards the sons of the deceased in forbidding them to go to their father after he was shot, and his conversation with the daughter of the deceased, who arrived after her father was wounded.
The court submitted the issues to the jury in a charge to which there was no exception taken, and which we regard as a fair, unusually accurate, and full instruction to the jury upon the law of murder, manslaughter, and self-defense, carefully protecting the rights of the appellant under the rules relating to the burden of the proof and the presumption of innocence.
We are asked to say that as a matter of law the issue of murder was not raised by the evidence. This we are unable to do. From the state's evidence the jury might have fairly deduced the inference that the appellant acted upon malice engendered by the ill feeling of the parties and the previous difficulty, and that, anticipating the meeting with the deceased, he armed himself with a shotgun loaded with buckshot, and that he applied to the deceased an epithet, which, while not justifying an assault upon him by the deceased under our statutes, which declare insulting words insufficient to justify an assault, was reasonably calculated to cause the deceased to make an assault or demonstration against the appellant. Appellant's use of the insulting words was both wrongful and unlawful, and the jury may have concluded that it was intended to produce the occasion for slaying the deceased. See, Cornelius v. State, 54 Tex. Cr. R. 186, 112 S. W. 1057, in which it is said that any words "that are calculated to provoke and do provoke a difficulty, and are so intended, will be and are a basis for a charge on provoking a difficulty." In the instant case there was no such charge. This was favorable to the appellant. Under the charge given the jury were authorized to accept...
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Wade v. State
...to support a conviction for murder. The facts in this case will be found more fully stated in an opinion upon a former appeal, 88 Tex. Cr. R. 372, 227 S. W. 489. Briefly, there had been quarrels and feeling between appellant and deceased recently before the homicide. There was a line fence ......
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Pendell v. State, 25921
...49, 171 S.W.2d 356; Haney v. State, 57 Tex.Cr.R. 158, 122 S.W. 34; Wilson v. State, 81 Tex.Cr.R. 216, 194 S.W. 828; Wade v. State, 88 Tex.Cr.R. 372, 227 S.W. 489. But we are aware of no authority which would support the view that in the absence of an objection timely made a reversal should ......
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Meador v. State
...with appellant's contention in this regard, and think the cases of Deckerd v. State, 88 Tex. Cr. R. 132, 225 S. W. 166, Wade v. State, 88 Tex. Cr. R. 372, 227 S. W. 489, and the other authorities cited by appellant, are not upon facts which have analogy here. If the court had not withdrawn ......
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Bilyeu v. State
...of malice might be drawn. Other cases defining the same principle are Hart v. State, 87 Tex. Cr. R. 55, 219 S. W. 821; Wade v. State, 88 Tex. Cr. R. 372, 227 S. W. 489. We are not impressed with the soundness of the contention that the court was in error in rejecting the testimony to the ef......