Williams v. State

• Decision Date: 17 May 1899
• Docket Number: (No. 1,665.)
• Citation: 51 S.W. 224
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 224

WILLIAMS v. STATE.

(No. 1,665.)

Court of Criminal Appeals of Texas.

May 17, 1899.

Appeal from district court, Erath county; J. S. Straughn, Judge.

Annie S. Williams was convicted of murder in the second degree, and she appeals. Reversed.

Daniel & Keith, W. J. & Eli Oxford, and Martin & George, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and her punishment assessed at confinement in the penitentiary for a term of 20 years; hence this appeal.

This is a companion case to cause No. 1,656 (Williams v. State [decided at the present term] 51 S. W. 220), and the statement of facts is substantially the same in both cases. In the former case, however, Harry Williams was a witness, while in this case he did not testify, but his wife, Annie S. Williams, was a witness in her own behalf. She testified in this case, in effect: That she and her husband were informed of the article in the Erath Appeal on Saturday, while they were in the country. That when they came home, that night, they saw the article about supper time. After supper she and her husband and son Frank Heizer got in the buggy, and went to the house of one Moore, who was the editor of the Empire, another paper in town, and there talked with him in regard to the said publication. That from there they returned home, and remained at home during Sunday. That on Monday morning she and her husband and son Frank got in the buggy and went downtown. That she carried her husband's dirk knife with her. That her husband attempted to get a pistol at the court house. That while he was in the court house she went to a store and bought a buggy whip. That she and her son then returned to the court house, and her husband came out and got in the buggy, and they drove to the office of King & Hibdon. That she had made up her mind, before she went down there, to horsewhip the man who had written the article in the paper. That she carried the dirk knife along for protection. That they went up to the office of King & Hibdon, and no one was there, and they sent for King. When he came in, Mr. Williams asked him if he was the editor of the Erath Appeal, and he said he was. Williams then asked him if he was responsible for the article in the paper, and he said he was. Williams then asked him if he knew how that article read, and he said he did. Her husband then told him that the article was a lie from beginning to end. King said: "Hold on, Williams. I have good authority for that article." That she asked King who was his authority, and he said, "Snapp." Williams then said to King, "Don't you know that you have put the negro at the head of this thing, and that you slandered my wife?" and then asked him if he knew what "proboscis" meant, and deceased said he did,—that it was the fore part of the face. Williams then said: "It is no such thing. It was the snout of an elephant." She then asked King if he had ever seen her before, and he said, "No," and then said to King, "What do you know about my face and complexion and my form?" King said, "What in the hell have you got to do with it?" and she then said, "I will show you." "I then reached back and picked up the whip, and King jumped at me, struck me two licks, one on each side of the forehead; and King said, as he struck me, `No, God damn it! you won't. I will kill you first.'" That, when he struck her on the head with his fist, he knocked her bonnet down over her face, and grabbed her by the arm above the left elbow. He gave her arm a fearful wrench, and pushed her out of the door. Her bonnet was still down over her face, and he had her by the left arm; and he hurt her so by twisting her arm that she took the knife she had in her left hand with her right hand, and cut at him, but did not know that she hit him, as she could not see what she did. She was so mad, and he hurt her so, that "I cut him for the purpose of getting him loose from me." About this time Williams and King became engaged, and were knocking at each other; and Sam Russell and Charley Wilson came running in, and separated them. She further said that she intended to horsewhip King, if he said he wrote the article in question, and to do whatever was necessary to make him take it, but that she did not intend to kill him. For other testimony, we refer to the opinion in Williams v. State, supra.

The first question presented is as to the action of the court in overruling appellant's motion for continuance. Appellant made an application, setting up that she could prove certain facts by one Russell, who, it was shown, had been properly subpœnaed, but was unable to attend, on account of sickness. In reply to this, the state set up the testimony of said witness Russell in the examining trial, and offered to admit the truth thereof. This examining trial evidence, in addition to the facts stated in appellant's application, contained other facts testified to by said witness more or less damaging to appellant. It was further developed, as shown by the court's explanation, that on a former day of the same term a motion for continuance, predicated on the absence of this same witness, was filed, which contained, as an exhibit, the whole of the examining trial evidence. It is insisted by the state that this was a sufficient answer to the application for continuance. On the other hand, appellant contends that it was no answer; that the authorities all show that, in order to cut off the motion for continuance, the truth of the facts stated in the application must be admitted. This is true, as a general proposition; but, under the peculiar facts of this case, it occurs to us that the application was here made for delay merely, and that, if said witness had been present, it is doubtful if appellant would have introduced him, should the state have failed to bring him forward as a witness. There is no suggestion here made that his testimony would be different from that rendered by him on a former trial of the case. If such was the case, it was entirely feasible for the defendant to have taken his affidavit to that effect, as said witness was accessible, being sick in the town where the trial took place.

In our opinion, the testimony of Mrs. Altman and Tish Adams was admissible. The difficulty evidently occurred about the alleged libelous publication contained in the Appeal, and it was admissible to show the facts and circumstances connected with said publication, as furnishing the basis thereof, and to show what appellant may have said about it, See the question discussed in Williams v. State, supra.

The state introduced John Lockhart, who testified that, shortly after the stabbing of King, and while defendant and Harry Williams were coming downstairs from the office of deceased, and just as he struck the sidewalk, in the presence of the officer who had him in charge, witness Lockhart said to the party who had hold of deceased to lay him down, so the blood would run out of him, and that Harry Williams replied to that, and said: "Yes, God damn him! lay him out. That is what I aimed to do, and there are five or six others in this town that I will do the same way, if I get the chance." This testimony was objected to on the ground that it was irrelevant and immaterial, after the commission...