Willis v. State

• Decision Date: 22 March 1922
• Docket Number: (No. 6726.)
• Citation: 239 S.W. 212
• Parties: WILLIS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 212

239 S.W. 212

WILLIS v. STATE.

(No. 6726.)

Court of Criminal Appeals of Texas.

March 22, 1922.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Jeff Willis was convicted of murder, and he appeals. Affirmed.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for murder. Punishment fixed at confinement in the penitentiary for a period of 14 years.

The deceased, Josephine Willis, was the wife of the appellant. She had, according to his testimony, lived with him before their marriage. Afterwards she determined to separate from him, and secured a situation, and engaged the witness Ligon to accompany her to the residence of the appellant and remove her household goods in his wagon. According to Ligon, they met the appellant, and he was told of their mission. He said, in substance, that the deceased had married the appellant and had afterwards left him. Ligon asked the appellant about the whereabouts of one Newt Watkins, and was informed that he was at home, and that, as he (appellant) was going to town, he would call Watkins up. Before reaching the home of the appellant, the witness and the deceased were overtaken by the appellant and Watkins in company with each other, and Watkins demanded, as a condition precedent to permitting the removal of the property, the payment of a sum of money. This money related to an advancement made in obtaining the divorce from her former husband and was paid. When the witness and the deceased approached the home of the appellant, he was chopping cotton in his field, about 30 or 40 yards from the house. This they could see from a distance of about 200 yards. When they reached the house, the appellant was not in sight, but his daughter was near by. When they reached the inclosure, the deceased got out and opened the gap. The wagon was driven in front of the house. Appellant ran out of the house with a gun. Ligon said, "Don't shoot that woman!" She began hollowing not to shoot and ran. He followed her and fired. She fell, and was sitting on the ground when the appellant aproached, saying, "You God damn lying bitch," and fired. She hollowed, "Oh, my Lord!" and continued groaning and moaning and begging him not to shoot her. He cursed her and fired the third shot while very close to her. She did nothing to him when he shot her, and had not spoken to him.

The appellant's confession was introduced, in which he said:

"When she was opening the gate, I ran out from behind the house with the gun, and she threw the gate down and broke and ran. I ran after her. I shot her once while she was holding the gate. I don't know whether she had her back to me or not. I told her she wasn't treating me right. Then she ran up the road. I did not shoot at her while she was running. I caught up with her at the corner. Then she ran out of the road in a cotton patch. She fell down in the cotton patch. I shot her once in the cotton patch. She whirled around and I was close to her and I shot her when she whirled. I don't know whether I shot her three times or not. While I was after her, she asked me not to shoot her any more; that she would stay with me until she died. After she was down, me and my girl Annie brought her to the house and put her on the porch. After this I went back to the field and went to work."

In the confession appellant described the meeting of the deceased and the witness Ligon and overtaking them in company with Mr. Watkins, and said:

"After I got to the house, I got to thinking about how she had done me, and I decided that, if she did not pay me, I was going to hurt her. I got my gun a little while before she got to the house. I was back of the house."

In his testimony appellant described his relations with the deceased; their living together before their marriage; his furnishing her money for her divorce and aiding her while she was sick; her harsh conduct toward his children, and threatening conduct towards him. At one time she chased him with a gun. She told him that she was not going to live with him, and that she was "coming to get her things or die or go to hell." He described the meeting with her as mentioned by the witness Ligon. The witness Watkins said to appellant, "Jeff, you go on home," and he did so. From his home he saw two wagons coming, and, when they came, the deceased got out and opened the gate. He came from behind the house, and deceased asked him where he was going. He replied, "Where are you going?" She said "Hell; I'm going in to get my things." Appellant then said:

"When she said that, I come from around the house and shot. She ran, and I was gaining on her so fast that some way or another she whirls and comes back to me with her hands raised over her head, and about the time she comes back to me I shot again. I didn't shoot any more. She then made it up to the corner of the wire fence, and she was coming across the ditch when I shot her. I was pretty close to her when I shot her the first time. I didn't shoot her but twice. I was afraid of her. I'll tell the truth; the reason I killed that woman was because I was afraid of her; I was scared of her; that is the honest truth. The threats and everything she made to me, I got out of her way and saved myself, and at that time I was just scared of her. After the shooting I went out in the field and chopped cotton. I was excited, and, when Mr. Watkins got there, I was crying."

Several bills of exceptions relate to the action of the court in ruling upon the qualification of veniremen. A juror stated that he had an opinion which would probably influence his verdict, but thought that he could disregard it. He was excused on the state's challenge for cause. The details of his examination are not given in the bill, and we think it fails to disclose an abuse of the discretion vested in the trial judge under subdivision 13 of article 692 of the Code of Criminal Procedure. For aught revealed by the bill, the opinion may have been fixed and founded on knowledge of the facts or communications with witnesses. Rothschild v. State, 7 Tex. App. 519, and other cases cited in Vernon's Texas Crim. Statutes, vol. 2, p. 377, note 37. The presumption in favor of the court's action is not overcome.

The second bill relates to the prejudice of the juror against the suspended sentence law. A certain degree of prejudice against a defense has been held not a disqualification. Cannon v. State, 41 Tex. Cr. R. 467, 56 S. W. 351; Cyc. vol. 24, p. 283, subd. 5 of the text. As stated therein, the rule would doubtless be otherwise if the said juror's mind was such as he would be unwilling to accept a proved and established legal defense. People v. Carpenter, 102 N. Y. 238, 6 N. E. 584; Kennedy v. State, 19 Tex. App. 618. He was excused upon peremptory challenge by the state.

The venireman Freeman had an opinion, but, if we properly comprehend his testimony, it was formed from newspaper reports and hearsay and was not such as would control in passing upon the merits of the case. Upon this phase of the matter, we think the action of the trial court was well within the discretion conferred upon it by subdivision 13, art. 692, supra. The juror stated that he was prejudiced against the suspended sentence law, but explained that he thought it had been abused, and that there were cases in which it should be applied. He was excused upon peremptory challenge by the appellant.

In Cannon's Case, supra, the jurors stated that they were prejudiced against the plea of insanity, which was one of the issues in the case. They had no opinion as to the merits of appellant's plea of insanity, and their opposition to the plea was founded upon their belief that it was often unfounded; that, if accepted, they would give consideration to the testimony relating to that defense the same as that given to any other defense interposed. The jurors were held not disqualified upon the authority of Thompson v. State, 19 Tex. App. 593. In holding Freeman qualified, the court, in our opinion, did not err.

The examination of the juror Greer portrayed a state of mind similar to that pertaining to the venireman Freeman. Appellant's challenge for cause was overruled, and the request for an additional peremptory challenge was also denied. The attitude of Greer doubtless would bring him within the description of an ...