Wade v. State

• Decision Date: 23 January 1924
• Docket Number: (No. 7728.)
• Citation: 263 S.W. 589
• Parties: WADE v. STATE.
• Court: Texas Court of Criminal Appeals

263 S.W. 589

WADE v. STATE.

(No. 7728.)

Court of Criminal Appeals of Texas.

January 23, 1924.

Rehearing Denied June 25, 1924.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Lynn Wade was convicted of murder, and he appeals. Affirmed.

Morrow & Stollenwerck and Collins, Dupree & Crenshaw, all of Hillsboro, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Hill county of murder, and his punishment fixed at 15 years in the penitentiary.

Appellant was convicted of the murder of his sister-in-law. The record is voluminous, and shows that some months prior to the homicide deceased filed a complaint against appellant for an assault with intent to rape her and that subsequent to the making of said charge she shot appellant with a pistol. There is a good deal of testimony with reference to a petty lawsuit between some of the relatives of the parties, from which there arose feeling and animosity among different members of the family. On the day of the killing, deceased and her husband came to the town of Hillsboro and hitched their team on the north side of the courthouse, on the courthouse square. Later appellant came to town with his brother Robert, and they stopped their buggy on the west side of the courthouse, on the courthouse square. Appellant had a gun in the buggy loaded with buckshot. He remained near the buggy while his brother went off to transact some business. About the time the brother returned, deceased left the sidewalk west of the courthouse and started toward the entrance into the courthouse yard. Her route took her some 8 to 15 steps south from where appellant was. At or about the time she was at her nearest to him he got his gun from the buggy, and as the woman fled into the courthouse yard he shot her. He claimed that she had a little bag or pocketbook of some kind in her hand, and that she had previously pursued him at various times and had threatened to kill him, and that as she came near him on the occasion of the homicide she had her hand and said pocketbook or bag up about her breast and he thought she had a pistol, and that as she went away from him into the courthouse yard at a point near a tree and telephone post she turned, and thinking she was about to shoot him he shot her. No pistol was found in the bag or pocketbook of deceased, but a small pistol was found in a pocket in her dress after her death. It was in testimony that when shot she was holding in one hand a little bunch of artificial flowers and in the other the pocketbook or bag referred to.

Appellant's first bill of exceptions complains of the introduction against him of a statement or exclamation made by the witness Low at or just before the shooting. This witness testified that he was in the door of a blacksmith shop on the west side of the courthouse square and saw deceased pass said shop, going north. His attention was next attracted to her by hearing her scream, and he looked up and saw deceased running just before she entered the courthouse yard. She was at that time about five or six feet west of the gateposts, running toward the courthouse. He saw the appellant reach into the buggy for his gun, pull it out, and put it to his shoulder. Witness said it seemed to him as though defendant paused a little and then fired. He testified that when he saw appellant get the gun and level it he hollered and told him not to shoot that woman, or "Don't shoot that woman;" something like that. This was the exclamation objected to. He said that at the time he hollered at appellant and told him not to shoot the woman she was running toward the courthouse and was facing toward said building, and at that time was five or six feet from the west entrance to the courthouse yard. Witness further said that when he hollered at appellant not to shoot he shot and the woman fell. We have examined all of the authorities cited by appellant in his brief filed in this case and also in his supplemental argument. In section 87 of his Annotated P. C., Mr. Branch cites a number of authorities supporting the proposition that if the statements of a third person were part of the transaction, and illustrate the feelings, motives, and acts of the principal actors, proof of same is admissible as part of the res gestæ. We are inclined to uphold the admissibility of the evidence as falling within that rule. We do not think it to be parallel to any of the cases wherein is discussed the law applicable to a statement made after the act done by the accused which is the basis of the prosecution, which cases usually proceed upon the proposition that the statement held objectionable express an opinion in some way affected by what had been done. Mr. Low's exclamation, "Don't shoot that woman," could but have appeared to the jury in this case the natural involuntary exclamation of one who views an injury about to be inflicted, and can in no sense be held to express his opinion as to who was right or wrong in the controversy. It reflects no expression of Mr. Low or belief that the shooting was without cause, or not in self-defense, or that it was the act of one guilty of a crime. The state's contention was that the woman was running at the time she was shot, and that this state of facts was in existence when Mr. Low made the statement objected to. The appellant testified that when deceased got even with his buggy she turned like she was going to face him and, he thought, probably shoot, and he reached in the buggy and got his gun; that she went on through the gate and near a tree and telephone post and stopped and turned, facing him, like she was going to turn toward him, and when she did that he leveled his gun and fired. We find ourselves entirely unable to attribute to the statement of Mr. Low the objectionable features argued so strenuously by appellant. See Wynne v. State, 59 Tex. Cr. R. 126, 127 S. W. 213; Jeffries v. State, 9 Tex. App. 603; Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670; Pettis v. State, 68 Tex. Cr. R. 221, 150 S. W. 791; Freeman v. State, 77 Tex. Cr. R. 583, 179 S. W. 1157; Kinney v. State, 65 Tex. Cr. R. 251, 144 S. W. 257; Long v. State, 48 Tex. Cr. R. 175, 88 S. W. 203; Kemper v. State, 63 Tex. Cr. R. 1, 138 S. W. 1025.

The next point briefed by appellant is bill No. 5, complaining of the refusal of the trial court to allow him to testify as a witness that when deceased shot him in March, before the killing in May, from the effects of it he suffered pain and became weak and went to bed. An examination of the testimony of appellant shows that he testified that when deceased shot him on the occasion mentioned it broke the bone of his arm and that he went home and lay down on a bed.

Bill of exceptions No. 6 complains of the refusal of the trial court to permit appellant to testify that he suffered pain from the wound inflicted on March 11th by deceased up to the time of the homicide. It may be that in some form an exception to this testimony was sustained, but an examination of the bill of exceptions shows that the court admitted this testimony, and the complaint directed at same appears to be that the court admitted it for certain specified purposes. There is nothing in the record which reflects the fact that the court told the jury they could consider it only for certain purposes. No charge was given the jury to that effect, either orally or in writing, as far as the record shows. The jury would thus seem to have been at liberty to consider the evidence for all purposes.

Bill of exceptions No. 7 shows to have been taken to the refusal of the court to permit appellant while a witness to testify that on the afternoon of the homicide he and his brother Robert drove up on the public square at Hillsboro and saw the team of deceased near where they stopped, and that he said to his brother, "There is John's and Rosie's team; let's get out of here right away." From the direct testimony of the appellant, as same appears in the statement of facts, we quote:

"After we got there I noticed John and Rosie's team tied near the gate on the north side of the square. I didn't hitch the horse because I saw John and Rosie's team tied over on the north side of the square, and I was afraid to leave my buggy and get out on the sidewalk, for it was dangerous for me to pass stores or anything like that, the doors; afraid that they would shoot me, one of them would, so we prepared to leave town at once. * * * I wanted to leave town immediately, because I was afraid they would shoot me, John or Rosie, one. * * * After Robert got back I asked...