Wheeler v. State

• Decision Date: 15 March 1911
• Parties: WHEELER v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 68

WHEELER v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1911.

Appeal from District Court, Grimes County; S. W. Dean, Judge.

Godie Wheeler was convicted of murder, and appeals. Affirmed.

Geo. D. Neal, Carl T. Harper, and W. W. Meachum, for appellant. T. P. Buffington, Gordon Boone, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at 20 years' confinement in the penitentiary.

The former appeal will be found reported in 56 Tex. Cr. R. 547, 121 S. W. 166.

1. Error is assigned on the refusal of the court to grant a continuance for two absent witnesses. The court qualifies the bill of exception by stating, substantially, that the application on its face showed merit, but overruled it, believing that the evidence of the witnesses might be secured during the trial, and if not, and a conviction resulted, a new trial could be awarded. Attachment was served, and one of the witnesses brought into court and testified. The other witness was not produced on account of sickness; but it was agreed by the state that her testimony could be used with the admission that it was to be taken as true, and her testimony was used and conceded to be true. Viewed from the standpoint of the motion for new trial, there was no error. Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753; McGrew v. State, 31 Tex. Cr. R. 336, 20 S. W. 740; Skaro v. State, 43 Tex. 88.

2. Taking the testimony of the absent witness as being true, appellant makes one of the serious contentions suggested for revision. That contention is that her testimony, being conceded to be true, must be so taken, and that, being so taken, the evidence is not sufficient to justify the conviction. Appellant's contention, under the testimony of this witness, who was Bessie Plasters, was that the killing occurred at or before 1 o'clock at night, and the defendant was in his room at 1 o'clock at night. If her testimony puts him in his room at 1 o'clock at night as contended, then he was about 2,000 yards or such matter from the place of the homicide at that time. There was a protracted meeting going on in the neighborhood, which all the parties attended. Mrs. Plasters, who was then Miss Wheeler, and another sister of appellant who testified in this case under the name of Mrs. McAdams, reached their home in company with appellant and Carl McAdams at 12:15 o'clock, making it just after midnight. That she and her sister went to their room, both then being young ladies. That a little later her brother came in after unharnessing the horses. Sleeping apartments were furnished appellant and Carl McAdams; they sleeping in separate but adjoining rooms. They all went to bed directly, and, after appellant and McAdams had retired, the ladies went to the dining room for the purpose of obtaining something to eat. Directly they went to bed. She says: "We went in our room where we were to sleep and went to bed. We heard the clock strike 1 after we got in bed. That was not long before I went to sleep. I then went to sleep. Up to that time Godie had not been out of the house. I had been up, and he could not have gone out without me knowing it." She also testifies that appellant was there early the next morning when she saw him about sunrise. The testimony also shows that the clock referred to by Mrs. Plasters struck the half hour as well as the hour. Unless her language as quoted, to wit, "We heard the clock strike one after we got in bed," definitely fixed the time at 1 o'clock, it may have been as well half after 12, as the clock struck the half hour. So that we take it that her statement is not definite that it was 1 o'clock, but it is definite that she heard the clock strike one. She does not attempt to fix the exact time or anything like the exact time in minutes elapsing between the time they arrived at home and the time that she laid down. She may have gone to bed within the 15 minutes elapsing between 12:15 and 12:30. Inasmuch as she does not fix it definitely, it would be a matter of speculation as to whether the clock struck the hour or the half hour. This testimony bears upon the question of alibi sought to be established by appellant.

Another witness testified, in this connection, that he heard the shots fired that are supposed to have killed deceased, and that a few minutes afterwards—some 10 or 15 —his clock struck one, but he did not know whether his clock kept the correct time or not. It is a conceded fact which forms the basis of this prosecution that somebody killed the deceased, Sam Thomas. Leaving the place where the meeting was in progress, after it had closed for the night, those who went to the Wheeler residence reached that point at 12:15 o'clock by the clock at the Wheeler residence. It seems from the testimony that those who went to the Wheeler residence had parted company or left Sam Thomas, the deceased, who was in a buggy with a Miss Sandle, about a thousand yards from their residence at the gate of Mr. Wheeler. In going from the gate to the Wheeler residence, the witnesses indicate that they went in the usual gait; sometime in a trot and sometime in a walk. It would have taken something like 10 minutes to cover that distance. Then they parted company with deceased, under this view of it, about 5 minutes after 12 o'clock by the Wheeler clock. Sam Thomas, the deceased, as before stated, was in a buggy with a Miss Sandle taking that young lady home from church. From where they parted company it seems to have been about 3¾ to 4 miles to the Sandle residence, to which place deceased conducted Miss Sandle. In going to her residence Miss Sandle makes it appear that they traveled sometime in a walk and sometime in a trot. In other words, from her testimony there seems to have been no extra speed in going that distance. The witness Robert Harmon was traveling the same road and overtook deceased and Miss Sandle near a little creek near Mr. Choate's residence between the Wheeler residence and San Jacinto river. He did not pass deceased and Miss Sandle, however, but there was something said about the parties stopping at the creek to get a drink of water; that deceased and Miss Sandle went on ahead. If we assume that at the rate of speed deceased and Miss Sandle were traveling it would take something like three-quarters or an hour to reach the Sandle residence, then it was shown that from Sandle's back to the point where the homicide occurred was something like 5 or 5¼ miles. Deceased would have to make this distance, 3¾ to 4 miles to Sandle's and then return 5 or 5¼ miles to the point of the homicide. Under this view of the testimony, and the manner of traveling shown by the witnesses, the homicide could have hardly occurred earlier than 1:30 by the Wheeler clock. If so, then Mrs. Plasters' testimony does not establish the alibi beyond controversy. Under any view of her testimony, it would not be beyond 1 o'clock at the time or a few minutes after 1 when she went to sleep. She did not speak of hearing the clock strike 1, but one time. If that was 12:30, then the alibi is of no moment; but, if the hour struck was in fact 1 o'clock, then the deceased would have had to have ridden something like 8 or 9 miles to be back at the point of the homicide at the time the other witness places him, some 10 or 15 minutes before 1 o'clock. This, under the facts detailed, would have been an impossibility. So the time of the homicide is not accurately fixed by any of the testimony; but we may assume as a safe criterion by which to judge it that, at the rate of speed deceased was shown to have traveled, it must have been fully an hour and a half or longer before he reached the place where the killing occurred.

Another witness, Adam West, testifies: That sometime that night, which he did not undertake definitely to fix, he was going from a certain house across to another one, and en route he saw the defendant returning from the direction of where the homicide is shown to have occurred with a shotgun in his hand. That when he saw defendant coming he secreted himself until the defendant passed along. This he swears was a few moments after the shooting. Some other facts may be stated in this connection. One is that deceased was killed by two loads discharged from a shotgun, and two from a 45-caliber pistol. The two loads of the shotgun were fired from a clump of bushes; the two pistol balls were fired into the body of deceased after he had fallen. Whoever killed the deceased did it after a very careful planning, and evidently had knowledge of the movements of the deceased that night, and the further fact that he would return to a certain gate to go to his father's residence. When deceased reached the gate, he got out of the buggy to open the gate, and when he did this he was fired upon and killed. The party was secreted in a clump of bushes. It was after deceased had fallen that the two pistol balls were fired into his body. These were found in the ground under the place where the body was lying. There are some other facts with reference to the character of the cartridges and shot that were introduced in evidence; that appellant had the same character of cartridges in his house, and no others were found after careful investigation in the neighborhood. The next morning when the neighborhood gathered at the scene of the tragedy appellant was present. A question came up in regard to who owned a pistol that carried the balls that were found shot into the body of deceased. Appellant, as well as the remainder of the crowd present, denied having any such pistol. The houses in the neighborhood were investigated and searched. In appellant's room was found a shotgun recently discharged, as the witness says, not at a more remote period than 12 or 16 hours, and in his trunk was found a 45-caliber pistol with two empty chambers recently discharged. The owner of the...