Ward v. State

• Decision Date: 07 May 1913
• Parties: WARD v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 272

WARD v. STATE.

Court of Criminal Appeals of Texas.

May 7, 1913.

Rehearing Denied June 27, 1913.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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

S. P. Ward was convicted of second degree murder, and appeals. Affirmed.

R. L. Stennis and James C. Wilson, both of Weatherford, W. F. Ramsey, of Austin, and C. E. Mead, of Beaumont, for appellant. Luther A. Johnson, of Corsicana, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder in the second degree, and his punishment assessed at 10 years' confinement in the state penitentiary.

The record in this case is very voluminous, there being very near 100 bills of exception, and to take up and discuss each of them in detail would render this opinion too lengthy, but we will endeavor to discuss each question involved in the different bills, taking a number of them together where they relate to the same matter.

In bills of exception Nos. 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, and 37 objections are urged to various portions of the testimony of Mrs. Lou Davis, the wife of deceased. In bills of exception Nos. 44, 45, and 46 objections are made to the testimony of J. R. McCarter. These are kindred bills, and are governed by the same rules of law. It appears from the record that deceased was a son-in-law of appellant. The homicide occurred in the early fall of 1911. Prior to that year appellant had lived in Parker county, and deceased in Navarro county. The first of the year deceased had gone to Parker county, and assisted appellant in moving to Navarro county, and during the year 1911 they were neighbors, and at times had swapped work; appellant being allowed to milk some of deceased's cows. Some 10 days prior to the homicide a wordy altercation occurred between them, and appellant ceased to milk the cows of deceased, and turned them out. There are different views in the record as to this altercation, but we deem it useless to recite the circumstances, but cite the occasion as the one on which it seems the friendly relations ceased. Deceased moved off the premises, however, and it is not shown that any other trouble ensued until the day of the homicide. Of the events occurring at the time of the homicide there are two versions. The state contends when the two men met appellant asked deceased if he still contended he owed him $44. Upon deceased replying affirmatively, other words followed, when appellant cut deceased. As he inflicted the first wound, deceased reached in his pocket for his knife, and as he did so appellant cut him again, when deceased dropped his knife unopened, spurred his horse, and rode off. Appellant contends as deceased rode up, he spoke to him, when deceased replied: "Go to hell, G____d d____n you. I have come here to kill you"—pulled his knife, and struck at appellant twice, when appellant says he inflicted the fatal wound. This is a sufficient statement, as it will be necessary to refer to the evidence further in discussing the numerous bills of exception.

After receiving the cut deceased rode a short distance, calling his wife. She says: "When I got to him, he was just as bloody as he could be from here down, and I noticed there was a great bulge there. When I say here I mean his stomach. His entrails were not exposed at that time. I could just see the bulge of them through his shirt. I could tell from his demeanor—what he said, how he looked and acted—whether he was in pain or suffering. The condition he was in when I met him, he was dying, and his looks showed it. He was suffering; he was sitting there saying, `Oh Lordy, Oh Lordy, my stomach!' After I got under the fence and close to my husband, he said: `Your papa cut me; he cut me twice. He stepped out in the road and said, "Morgan, do you claim that I still owe you that $44," and I said, "Yes," and he jumped out in the road and cut me twice,' and he said, `Oh, I was never so surprised.' He said he was dying."

J. R. McCarter testified: "Mrs. Davis called me, and I started in a run. I was about 30 steps from her when she went under the fence. When I got to Morgan Davis (deceased), I caught him just as soon as I could get to him. I saw that he was falling off his horse. Morgan's head was coming right towards the ditch by the fence, and I pushed him back on the horse, and put my foot in the stirrup and went up behind him. Morgan was just as limber as one of the bridle reins, and he threw his head back on my shoulder and groaned. When he threw his head on my shoulder, he told me that he was riding down the road by Mr. Ward's house, and he had passed the house and got down the road a little below the house; he met Mr. Ward in the road, and said Mr. Ward stopped him and asked if he (Davis) still claimed that he (Ward) owed him $44, to which question he answered, `Yes,' when appellant Ward jumped at him, grabbed his horse, and cut him."

Appellant objected to all this testimony, giving a number of reasons. The evidence shows this was not over 10 or 15 minutes after he was cut; that he rode direct towards his home, and when he saw his wife, called; that he was suffering, and the evidence clearly shows that this testimony was admissible as res gestæ of the transaction.

Recently, in the case of Rainer v. State, 148 S. W. 735, we had occasion to review the authorities and reiterated the rule: "If the declarations appear to spring out of the transaction, if they elucidate, if they are voluntary and spontaneous, and made at a time so near to it as to reasonably preclude the idea of design, then they are to be regarded as contemporaneous" and are admissible. We also quoted approvingly from Mr. Wharton: "They need not be coincident as to time, if they are generated by an excited feeling which extends, without break or letdown, from the moment of the event they illustrate. In other words, they must stand in immediate causal relation to the act, and become part, either of the action immediately producing it, or of the action which it immediately produces. Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doing or declarations, become in this way evidence of the character of the act." In the Rainer Case will be found a long list of authorities, both from this and other states. In this case there was no break or let-down; his condition and the circumstances conclusively exclude the idea of design, and it is but the event speaking through the deceased.

And it was permissible to show that when deceased arrived home, what then was his condition, and that he had to be helped in the house. This all went to show the nature and character of the wound, and especially in the light of appellant's effort to show that the wound was not the cause of the death, but it occurred by the use of improper sutures.

As it appears from the above that the state's theory was that the killing took place over a difference, claimed to be due, of $44, it was not improper to permit Mrs. Davis to testify what she heard her father (appellant) say about the matter. Appellant, on cross-examining this witness, attempted to prove that the debt had been paid; then on redirect examination it was permissible for the state to prove what she of her own knowledge knew of the transaction. Appellant asked this witness on cross-examination when was the last time her husband was at Teague. Defendant stated he expected to prove a recent trip, and that deceased went there to get intoxicants. As the only intoxicants shown to have been in possession of deceased at the time of the homicide was shown to have been received from the express office, the evidence would be immaterial and irrelevant, as would the testimony of McCarter that, some time during the summer preceding the difficulty, he had seen deceased intoxicated. However, in approving the bills as to this latter part, the court states he told appellant's counsel the testimony would be admitted if he expected to show such evidence had any connection with the difficulty. We fail to see how the fact that deceased may have been drunk the summer before, or had been to Teague prior to the difficulty and secured intoxicating liquors, could have any bearing on the case. All testimony offered to show that deceased was intoxicated on the day of the difficulty was admitted in evidence. And we may here add that it was also immaterial whether deceased was drunk or drinking on Monday or Tuesday prior to the killing late Wednesday afternoon. If he was drinking on those days, it was not offered to show, nor is it claimed he saw appellant on those days, or made any remark to or concerning him, or it was in any way connected with the difficulty. It was permissible to show his condition at the time of the homicide, and immediately preceding it, but it was not permissible to go back and cover a period of time when he and appellant were not together, and such evidence could have no legitimate place in the testimony.

The state also introduced what is termed the dying declaration of deceased. It reads as follows: "My name is C. M. Davis. S. P. Ward is my father-in-law. Yesterday, September 6, 1911, while I was riding down the road through a cotton field, Mr. S. P. Ward stopped me in the road and said, `God damn you, do you claim that I owe you $44?' I said `Yes.' He immediately made a lunge at me, and cut me with a knife. I then reached for my knife, which was unopened in my hip pocket. I got my knife out and just started to open it when said Ward cut me again. I dropped my knife unopened, and spurred my horse, and got away. I make this statement voluntarily, and while I am of sound mind. [Signed] C. M. Davis. Witnesses: S. H. Burnett. J. R. Covington." This statement was written by Mr. Wilkerson, assistant county attorney, and he says everything deceased said was placed in the statement, except an answer made by...