Weaver v. State

• Decision Date: 04 December 1901
• Citation: 65 S.W. 534
• Parties: WEAVER v. STATE.
• Court: Texas Court of Criminal Appeals

65 S.W. 534

WEAVER v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1901.

Appeal from district court, Hill county; Wm. Poindexter, Judge.

Jesse Weaver was convicted of murder in the first degree, and he appeals. Reversed.

J. W. Stollenwerck, L. A. Carlton, and A. P. McKinnon, for appellant. W. C. Wear, J. E. Clark, C. F. Greenwood, Co. Atty., and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

The following summary of the facts adduced upon the trial is copied from appellant's brief: "Defendant, Jesse Weaver, and deceased, Charlie Martin, were brothers-in-law, having married sisters. Weaver married several years prior to the time that Martin married his wife's sister. At the time of the killing defendant lived about two and one-half miles from where deceased was then living. Martin was killed about dark on April 12, 1899, at a spring some 400 yards from his house, where he had gone to get water. The spring was in Richland creek bottom, and was remote from any thoroughfare or publicly traveled road. The state proved by Mrs. Martin (wife of deceased) that before she married Martin she was in the habit of visiting defendant and his wife, who lived in the same settlement with her father, and while there on such visits she, from time to time, had sexual intercourse with the defendant; that she slept in the same room with her sister and defendant (her sister's husband), and that these acts of illicit intercourse occurred in this same room where they were all sleeping; that she finally became pregnant, and defendant induced her to marry deceased, and was married to him on April 11, 1898, and gave birth to a child on October 7, 1898, which she said was Weaver's child. She testified that after her marriage she and her husband lived in the same house with defendant and her sister for about two weeks, and that even after the marriage defendant had intercourse with her. She also testified that these acts of intercourse took place between her and defendant while she was in bed with her newly-married husband; that after these two weeks she had never had any further sexual intercourse with defendant. She testified she had been going with her husband some two or three months before her marriage to him; that she had become engaged to him about Christmas time before her marriage; that her husband never questioned the paternity of her child; that he had been continuously friendly with defendant until a few days before the homicide; that March 20th, before the killing, she saw Jesse Weaver about half a mile from her house, down in the brush, and recognized him at this distance; that Weaver came to her house on Friday before the killing on Wednesday, and that her husband, Martin, told defendant to leave; that he told defendant not to speak to witness, and defendant replied that he would speak to her whether she spoke to him or not. She further testified that she had a father and nine brothers, and that the family were mad because of her marriage to Martin, and her testimony showed that they, or at least some of them, were at enmity with Weaver because of his having assisted in bringing about her marriage with Martin. Defendant was arrested about daylight on the morning of the killing the night before; this arrest having been made upon the order of the sheriff, and before the sheriff had gone upon the ground and made an investigation of the facts. Tom Bell, who was then sheriff of Hill county, testified that he got upon the ground about daylight of the following morning after the killing, and that his deputies had arrested Weaver about the time he got there. Before he had seen Weaver, he went upon the ground; and he testified that he followed tracks from the scene of the homicide in the direction of Weaver's house, and to within about one-half mile of Weaver's home. He testified as to certain peculiarities of these tracks, one among them being that the track showed that the bottom tap on one of the heels had been cut lengthwise, and one-half of the same was gone; that he went to where Weaver was under arrest, and, with the permission of defendant, examined his boots, and found that the tap on one of them had been cut lengthwise and one-half of same was gone. He also testified that Weaver admitted having a pistol, and, upon the same being sent for, it was found to be a five-shooter, four barrels of which had been discharged. It was a 38-caliber pistol, and one of the balls which had been taken from Martin's body was a 38-caliber ball. Martin was shot four times. A number of people went with the sheriff while he was following these tracks, but he did not show this peculiarity to any of them, nor did any of them testify to having seen any such peculiarity about the track. Defendant denied having at any time improper relations with Mrs. Martin, and denied any knowledge of the killing, proving by his neighbors that he was in the field near his house as late as five o'clock on the evening of the homicide. * * * The killing occurred two and one-half or three miles from his home, and the evidence offered by him, if true, constituted an alibi."

By the first bill of exceptions appellant complains of the court permitting the state to prove by Mrs. Sarah Martin (wife of deceased) that she had illicit intercourse with defendant for about a year before her marriage, which relations continued during that length of time at intervals; that she was pregnant when she was married to deceased, and Weaver was the father of her child. About midnight defendant came to the house of witness' father, and took her in his buggy to Martin's, waked him, and told witness she should marry Martin, and the marriage was consummated. The court states in his explanation to the bill "that this evidence was introduced in connection with other evidence as tending to show motive for the killing; the theory of the state being that these relations continued until Friday before the homicide, at which time deceased, at the instance of the father of his wife, forbade defendant from coming to his house or speaking to his wife, and the killing occurred the next Wednesday." Appellant insists that said testimony is irrelevant and immaterial, and too remote from the time of the homicide; does not show a motive on the part of defendant; that, whatever may have been the relations existing between Sarah Martin and defendant, they ceased more than a year before the homicide. The fact that evidence tending to show motive may be remote is no legal objection to the admissibility of the testimony. It is always competent to prove acts, conduct, or declarations of defendant which tend to establish his knowledge or intent, though they constitute in law distinct crimes, and are apparently collateral and foreign to the main issue, and may have occurred either prior or subsequent to the act for which defendant is being tried. Hubby v. State, 8 Tex. App. 597; George v. State, 17 Tex. App. 513. We held in Ex parte Mosby, 31 Tex. 566, 98 Am. Dec. 547, that defendant's adultery with the wife of deceased may be shown to establish his motive for the killing. And see, also, Spearman v. State, 34 Tex. Cr. R. 279, 30 S. W. 229. Remoteness of the acts might go to the probative force of the testimony, but would not per se be a reason for excluding the same. If the previous acts, threats, or declarations of defendant go to illustrate, make manifest, or explain the purpose and object of the crime committed, then all of such previous acts, declarations, or crimes may be admitted in evidence to establish said motive and intent. Hall v. State, 31 Tex. Cr. R. 565, 21 S. W. 368.

By the second bill appellant complains that the court permitted Dr. McLain to testify that defendant came to him during the year 1898, and prior to the marriage of deceased with defendant's sister-in-law, and desired medicine that would produce an abortion. This testimony was also germane and pertinent as going to establish the motive for the crime.

In the third bill of exceptions it is made to appear that the sheriff, Tom Bell, testified that he...