Powdrill v. State ( 1912 )

I did not participate in the decision in the case when it was originally handed down, not being present. I was present, however, when the motion for rehearing was overruled. That I may not be regarded as consenting to the affirmance of the case and the manner in which it was affirmed, I will make a few observations by way of dissent.

The case shows clearly, as found in the transcript of the evidence, that in 1907, appellant's wife sued him for a divorce. The deceased, the eldest son of appellant, took an active part with his mother against the appellant in that matter. That suit was brought in 1907, but was dismissed. A reconciliation occurred between the parties and continued until 1910, when another suit for divorce with injunction proceedings was filed by the wife against appellant. Appellant about two years before the homicide had some trouble with the deceased but subsequently a reconciliation occurred between the father and his deceased son. I cannot agree with my brethren that the reconciliation did not occur for the State's evidence and all the evidence shows clearly that it did. The facts show that some time before the killing, appellant gave his son, deceased, a horse, saddle and bridle when the latter was leaving home, going out in the western part of the State on some character of mission. Deceased was gone awhile, returning to his father's home, having disposed of the horse, saddle and bridle, and without anything. In other words, he was in a poverty stricken condition and began work on the railroad. During this time he was living with his father and mother and worked on the railroad until he was married about two years before he was killed. He then lived with his uncle, R.H. Powdrill, a short while when his father placed him on a farm, free of rent, and aided him in the cultivation of said farm, loaning him his wagon and team. Deceased continued to live on this farm, free of rent, until he was killed. He also worked a portion of his father's farm, free of rent, and was working that portion of his father's farm when he was killed. In January or February before the homicide appellant employed an attorney, Hon. S.H. Sanders, to defend the deceased in a case pending in court against the deceased and paid the lawyer his fee for defending his son. A daughter of the deceased, used by the State, testified: "My father rented the cotton ground to Oscar before the separation and gave him permission to plant a cane patch free of rent." The separation here spoken of was the last separation before the homicide. Bob Powdrill, a brother of the deceased and son of appellant, testified in this connection: "On Tuesday night after my father had come back from Henderson County on Monday, he and Jim and I and others started out on a serenading expedition, but after going a part of the way, we turned back and did not go and we all came back together as far as the road opposite our house and there we parted. My father went towards Mrs. Janes, and Jim and I went home. I did not tell my father what we had done at Center and what we intended to do. On the occasion of the serenade my father laughed and joked with us and was pleasant towards us and when we passed him on the road when we went to Arcadia he joked about some stirrup leathers. When my father came into the store at Arcadia he was apparently in as good humor as he was when he asked me about the stirrup leathers. I could not tell any difference." It was at Arcadia only a short time, within an hour or such a matter of the homicide, that appellant ascertained the fact of the contempt proceedings and that this conversation occurred between Bob Powdrill and his father, the appellant. Mrs. Bishop, daughter of appellant, testified: "When Oscar was first married he lived at Uncle Dick Powdrill's and afterwards went on the place my father had charge of. My father put him on that place free of rent. I have seen my father up there helping Oscar at work, cleaning up. That is to say, I have heard him say that he was going up there to help Oscar. My father had a good wagon and team and Oscar did not have any, and I have seen Oscar use my father's wagon and team. I do not remember anything about my father helping Oscar out of his trouble with old man McCray. Oscar had been married about two years when he was killed." Attorney Sanders testified: "I had represented Oscar Powdrill at Mr. Powdrill's request in some matters he had in court and Mr. Powdrill paid me the fee for representing Oscar. When I represented Oscar at the instance of Mr. Powdrill, for which Mr. Powdrill paid me the fee, this was some time in January or February, 1910, before he made the statement to me in April or May." Mrs. Ella Harris also testified to the same effect as the other witnesses, showing an entire reconciliation between the parties.

I do not care to go into details but I make the above statement as coming from the record which shows there had been a reconciliation between the parties. It is also manifest from the record, not only that there had been a reconciliation, but that up to within a very short time, perhaps within sixty minutes, or even a short space of time, that appellant was in a laughing, joking, humorous condition of mind and had not anticipated the serious results that followed so shortly. Upon ascertaining the fact that his wife and deceased had made affidavits for contempt proceedings against him, appellant became angered and outraged. His wife and the deceased had returned home, a short distance away. Appellant got his gun and went to the field where deceased was, and the killing occurred. Some of his children ran down to the field close by where they were living and met their father. This was within five minutes after the homicide, and remarked to him, "You have killed Oscar." He said, "Yes, I had it to do" as Oscar was coming upon him with a knife for the purpose of killing him. The ground was investigated at the scene of the killing and a very large knife was found near the body. This is uncontradicted testimony.

1. All of the proceedings in court were introduced in evidence by the State, over objections of appellant. This included the petition for divorce, injunction, affidavit, etc. I do not care to make a further detailed statement. The record is voluminous and it could serve no useful purpose as to what I may have to say. From the above, under the authorities in this State, I am of the opinion that the prior troubles had been two or three years before the homicide and which had all subsided and about which the parties were all reconciled, should not have gone before the jury. But if I am incorrect on that proposition, then unquestionably the law would require that the court limit the consideration of the jury to the latter provocation to the exclusion of the first. This has been decided as late as the case of Mayhew v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 229. See also McCoy v. State, 25 Tex. 33. There ought to be no controversy on this proposition.

2. It may have been proper to introduce before the jury the fact that the later divorce proceedings were pending in court and the deceased was instigating his mother to do what she was doing in that connection as bearing upon the question of motive. It seems that appellant grew enraged on account of the affidavit that the mother had made at the instigation of deceased for the contempt proceedings, and in a very short time committed the homicide, but the details and pleadings and averments of all those proceedings were not admissible, in my opinion.

3. It is clearly shown that the homicide grew out of making the affidavit for contempt proceedings within an hour of the homicide. This required the court to limit the jury in their consideration of the law and the facts in connection with that, without reference to the former trouble, which occurred about three years previously. And in this connection I would say, both on the facts and the law, appellant's conviction could not have been for a higher offense than murder in the second degree from the State's standpoint. It is the universal rule that where the purpose to kill is formed in an inflamed and excited condition of mind the offense is no higher than murder in the second degree, if the design is executed before the mind becomes sedate. Where a sufficient time has not elapsed for the mind to cool, the homicide would be no higher than murder in the second degree. The authorities are without any exception on this point. There have been quite a number of recent cases on this proposition of law, sustaining it, as I have stated. The court, therefore, should have limited the consideration of the jury, so far as murder is concerned, to murder in the second degree and the facts, in my judgment, do not sustain from the State's standpoint, a higher offense than murder in the second degree.

4. When the State introduced in evidence the declaration of appellant that he had shot his son in self-defense, as shown by the State's witnesses, it was incumbent upon the State to prove that statement false in order to secure a conviction of any grade of culpable homicide. This phase of the law should have been distinctly charged to the jury. Pharr v. State, 7 Texas Crim. App., 472; Combs v. State, 52 Tex.Crim. Rep.; Pratt v. State, 53 Tex.Crim. Rep.; Winkler v. State, 58 Tex. Crim. 564.

There are many other questions in the case, suggested for reversal, of more or less merit. I have briefly stated these propositions without amplifying them. To cover all the questions it would take a voluminous opinion and would serve no practical purpose, so far as this case is concerned, inasmuch as the motion for rehearing has been overruled, and the case made a finality. I have briefly written what I have written in order to suggest that I cannot agree with the opinion which, in my judgment, practically overrules a great number of decisions without even discussing them, and this on several questions. This conviction, under this record, ought not to be affirmed.