Ward v. State

• Decision Date: 11 October 1911
• Citation: 140 S.W. 1109
• Court: Texas Court of Criminal Appeals
• Parties: WARD v. STATE.<SMALL><SUP>†</SUP></SMALL>

140 S.W. 1109

WARD v. STATE.^†

Court of Criminal Appeals of Texas.

October 11, 1911.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

Bogan Ward was convicted of assault with intent to murder, and he appeals. Affirmed.

G. A. Bell and R. L. Williford, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted for an assault with intent to murder his wife, was convicted, and given two years in the penitentiary.

It is unnecessary to give any extended statement of the facts. We merely briefly state them. The shooting is alleged to have occurred on June 18, 1910. The appellant and his wife married about two years before that time. They were both young negroes. The appellant was very jealous and suspicious of her, and in effect accused her from time to time of intimacy with others. They had been quarreling and fussing almost continuously during their married life, and had separated twice before the shooting, and the indications are were going to separate again on the night of the shooting. The appellant had, shortly before this, carried his gun apparently for the purpose of shooting his wife, and about a month before the shooting he took it with him to church, and hid it out near the cemetery, and, after attempting to eavesdrop his wife in her talks with others on this occasion, ran and got his gun and brought it back towards the church. When attention was called to this by some persons, one of the witnesses accosted him to know why he had brought his gun with him to church. He replied to see if he could catch his wife; that she had not been treating him right, and, unless she did treat him right, he was going to kill her; that she had quit him the last time, and that he had taken her back the last time. On the day of the night of the shooting, the negroes had an Emancipation celebration or festival at one of their churches; the appellant and his wife and many others were there. Some of the persons were there of whom the appellant was jealous. The shooting occurred at night. The appellant's wife was engaged in a game with several others, among them some of the persons of whom appellant was jealous, and while she was thus engaged, with her back towards the church, a shot was fired, which struck her and seriously injured her. The shot from the same fire of the gun also struck several other persons. Several witnesses saw the flash of the gun, and immediately upon its flash appellant's wife fell, and exclaimed, "Bogan [meaning appellant] has shot me." Immediately after the shot, whoever it was fired it ran from one window from which the shot was fired across the house to another, and jumped out of the window and ran. The evidence clearly shows that whoever did the shooting at once ran across the house and jumped out of the window, and, while some of them testified they could not see the party well enough to clearly identify him while in the house, the appellant was clearly identified, after jumping out of the house, by several parties as the party who fired the gun. The testimony is ample, full, and clear to show that the appellant was the party who fired the shot from the gun that seriously injured appellant's wife.

Appellant has several bills of exceptions, complaining of the action of the court in admitting certain testimony. We will give one of them in full, which is a fair sample of each of the others. The first one is as follows: "Be it remembered that upon the trial of the above entitled and numbered cause, the state introduced the following testimony by the witness Will Green, to wit: `Defendant and his wife had been separated twice. They were fussing, quarreling, and fighting, and I would always stop them, and would not let them fight.' Which testimony was objected to by the defendant at the time it was offered, upon the following grounds, to wit: That said testimony was too remote, that it had no connection with the matter under investigation, and that same could serve no other purpose than to prejudice the minds of the jury against the defendant. And the court overruled said objections, and admitted said testimony, to which decision of the court the defendant then excepted, and tenders this bill of exceptions, and asks that same be signed and filed as a part of the record in this case." The court in allowing the bill qualified it as follows: "Defendant and his wife were shown to have been continuously fussing and fighting for some time prior to the shooting, and the evidence showed that defendant carried his gun with the avowed purpose of killing her and any other admirer she might have. The evidence was admissible to show motive, and was not remote, being shown to have occurred the month preceding the shooting."

The next bill complains that the court admitted the following testimony by the same witness: "The fights they had at my house, he accused her of other men. I heard him bring Frank Warren's name into it." This was objected to because irrelevant, not pertinent to any issue in the case, and not testimony against defendant, and it could only serve to prejudice the minds of the jury against the defendant. The court in allowing this bill qualified it as follows: "Defendant and his wife were shown by the evidence to have been continually fussing and fighting for some time prior to the shooting; and that defendant was jealous of his wife because of her alleged relations with Warren and other men. It is admissible to show motive, and was not remote. (See pages Nos. 10 and 11, and Nos. 42, 43, 46, statement of facts.)"

The next bill is to the testimony of the appellant's wife, as follows: "Once when we were having a fuss [meaning witness and defendant] he picked up a piece of board, and struck me on the wrist. (Witness was here asked by state's counsel to exhibit her wrist to the jury, showing and displaying to the jury a small scar on her wrist.)" This was objected to because it occurred long prior to the alleged shooting; that it did not tend to connect the defendant with the shooting, and it did not tend to show a motive for said shooting, and could only serve for the purpose of prejudicing the minds of the jury against defendant. The court in allowing the bill qualified it as follows: "The evidence in the case showed that defendant and his wife were constantly fussing and fighting, and that defendant was jealous of his wife and her relations with other men. The evidence was admissible to show motive, and was not shown to be remote, but within a week before the shooting, as will be seen by examining the statement of facts (pages Nos. 18 and 19)."

The next bill shows that the appellant objected to the following testimony of Simpson: "I examined a track where it appeared that some one might have jumped out of the south window [meaning a window of the schoolhouse where the shooting occurred]. I measured this track with a string. Afterwards I applied this string to a pair of shoes that were sitting by the defendant's bed; they looked like the shoes the defendant had worn the day of the `Festival.' The measurement fit the shoe in length and breadth." The defendant objected to this testimony, because said shoes had not been identified as the shoes of defendant, and there had been no proof that the defendant had ever worn the shoes so measured, and such testimony, if adduced at all, should have been introduced before the state closed its case; the same not being in rebuttal of any evidence brought out by defendant. The court overruled these objections and permitted...