Wilson v. State

• Decision Date: 27 June 1896
• Citation: 36 S.W. 587
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W. 587

WILSON v. STATE.

Court of Criminal Appeals of Texas.

June 27, 1896.

Error from district court, Ellis county; J. E. Dillard, Judge.

W. F. Wilson was convicted of murder, and appeals. Reversed.

G. C. Groce and M. B. Templeton, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of murder in the second degree for the killing of Mrs. Emma Ratliff, and his punishment assessed at confinement in the penitentiary for 30 years, and he prosecutes this appeal.

1. Two theories are presented by the state: First, that the appellant intentionally killed Mrs. Ratliff; and, second, that with his malice aforethought he shot at the husband of Mrs. Ratliff, and accidentally killed his wife, the deceased. The testimony of one Hanson, taken before the examining court, was introduced in evidence by the state. He swore that he heard the appellant use certain words, speaking to the deceased, Mrs. Ratliff, at the time of the shooting, to wit: "I will shoot through you. I will shoot you both." It was admitted that Hanson was 100 yards away, and that the wind was blowing the sound from, and not towards, him. To test whether from his position he could have heard the words to which he testified, a number of persons went upon the ground on a day when conditions as to wind, etc., were the same, and under practically the same conditions. These parties were placed in the position of the witness Hanson and others at the well, at which point the shooting occurred, and the words ascribed to the appellant were spoken by those at the well in different ranges of voice from the lowest to the highest; and it was proposed to be proved by these parties, and appellant alleges could have been proved by them, that they did not hear such words so spoken at the well, at the position occupied by Hanson, and that their hearing was good, which proof was rejected, and appellant excepted. The question before us is, is such testimony admissible? It was. This precise question was before the supreme court of Ohio in Smith v. State, 2 Ohio St. 511, and it was there held that such testimony was admissible. The question came before the supreme court of Tennessee in Byers v. Railway Co., 29 S. W. 128, and there such testimony was held admissible. The same question arose in the case of Railway Co. v. Champion (Ind. Sup.) 32 N. E. 874, and the ruling was the same in that case.

2. The court submitted to the jury the doctrine of provoking the difficulty, to which the appellant excepted. There seemed to have been a dispute between Ratliff, the husband of Mrs. Ratliff, the deceased, and appellant, in regard to some land,—as to where the line should run. Appellant was in possession, and had been for some time, of the land in dispute. Ratliff proposed to build a fence inclosing this land. Appellant and his son went to the place armed. He had a right to be there, and had a right to go armed, to prevent the erection of that fence. He had no right to use his arms, unless forced to do so by circumstances; but he had a right to prevent the erection of that fence. All agree that he spoke to Ratliff, the husband of the deceased, asking him whether he intended to build the fence on the land. Ratliff stated that he did, as testified by some witness, and by others that he did not. The testimony is conflicting upon this point. The state's theory was that when Ratliff said that he was or was not going to build the fence the defendant shot him, and in the attempt to kill him killed his wife, Mrs. Ratliff. The defendant's theory is that Ratliff was in the act of shooting him, and that he fired to save his own life. This theory is supported by the testimony of himself and his son and other witnesses. The doctrine of provoking the difficulty has no application to this state of facts. If appellant shot at Ratliff under the circumstances enumerated by Ratliff himself and some other witnesses, and accidentally killed his wife, he would be guilty of murder in the second degree. If appellant shot to save his life,— a theory supported by his testimony, his son's, and some other witnesses,—he was acting in self-defense, and that was the only issue in this case. The doctrine of provoking the difficulty can only apply when the defendant seeks to justify himself upon the ground of self-defense. The state replied to this theory by proving that he had...