Ware v. State

• Decision Date: 28 February 1906
• Citation: 92 S.W. 1093
• Parties: WARE v. STATE.
• Court: Texas Court of Criminal Appeals

92 S.W. 1093

WARE v. STATE.

Court of Criminal Appeals of Texas.

February 28, 1906.

Appeal from District Court, Kaufman County; J. E. Dillard, Judge.

Joe Ware was convicted of murder in the second degree, and he appeals. Reversed.

N. B. Morris and Young & Adams, for appellant. J. S. Woods, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of 15 years.

The statement of facts shows that there was ill feeling between the parties antedating the homicide. About two weeks before the homicide, deceased shot the dog of appellant, and this intensified the feeling. A day or two before the killing, there was some trouble about a calf of appellant getting into the inclosure of deceased. Deceased made complaint to the wife of appellant in regard thereto, and in that connection made threats against appellant. It was also proven by the state that appellant used threats against deceased. On the day of the homicide about noon, deceased and appellant met at the post office in the little town of Tolosa; deceased being in the post office when appellant came. Several other parties were also present. The parties spoke to each other. Deceased was getting his mail, and appellant asked the postmaster while looking in the W's to see if he had anything. As soon as they were through with the mail matter, deceased asked appellant about his calf getting into his inclosure, and an altercation ensued between them in regard thereto. As the parties waxed warm, deceased reminded appellant that they were in the post office. Appellant thereupon told deceased he could come out of the post office, and started. Deceased followed him to the door, and the altercation continued. There was a buggy standing near the post office, and the parties got near to it as they were quarreling. Appellant, among other things, told deceased, that it was a damn cowardly trick to kill his dog; and deceased told him his dog was sucking eggs. Appellant said it was a damn lie. At this juncture some of the witnesses say that appellant struck deceased first with a newspaper, which he had in his hand; but a majority of the witnesses state that deceased struck the first blow, hitting appellant over the head. Deceased being a larger and stronger man than appellant, in the fight which ensued he soon obtained the advantage, and, according to the testimony, was beating appellant over the head and had him stooped over. Appellant drew his pistol, and shot deceased in the bowels, inflicting a mortal wound, from which he died in about 30 hourts. This is a sufficient statement of the facts to discuss the assignments.

Appellant made a motion for continuance on account of the absence of his wife. It appears that diligence was used to procure her testimony, but she was sick at the time. This is appellant's second application for continuance. It occurs to us that the testimony of this witness was of a material character; it being proposed to prove by her that in connection with the deceased speaking to her about the calf's depredations on his property, that he said, he intended to kill the calf, and also kill the defendant. That she told her husband of this. This was a day or two before the homicide. The continuance should have been granted.

During the trial, after the state had rested its case in chief, and after defendant had testified as a witness in his own behalf, the state called as a witness, E. L. Dixon, and asked him if immediately after the shooting, and while en route from Tolosa to Kaufman, defendant made any statement to him in regard to the killing, and he answered that he did not. Whereupon the assistant county attorney asked said witness if he had not testified before the grand jury to the effect, that defendant stated he would have shot deceased again, and would have killed him if his (defendant's) pistol had not snapped. And he answered that he did make such statement, but he was mistaken, and in thinking over the matter, immediately after leaving the grand jury he discovered his mistake, and sought a neighbor and desired to correct the same; and was informed that he could do so at the trial. That before the trial he also informed counsel for the state that he was mistaken as to said matter. All of this procedure was objected to on the ground that the questions propounded were leading, and no necessity was shown for having the witness' memory refreshed by the proceeding before the grand jury; and that said statement of the defendant before the grand jury could not bind defendant, and could only be used by appellant for the purpose of impeaching the witness, and he being a state's witness he could not be impeached by the state by showing that he had made a statement before the one he had made in court, unless he had testified to something injurious to the state's interest. All of which objections were overruled by the court, and the witness compelled to testify as aforesaid. In connection with the witness' testimony, the statements made before the grand jury were permitted to go...