DocketNumber: No. 21027
Citation Numbers: 139 Tex. Crim. 480, 141 S.W.2d 354
Judges: Beauchamp, Hawkins
Filed Date: 5/15/1940
Status: Precedential
Modified Date: 1/13/2023
The appellant was convicted in the District Court of Taylor County on a charge of murder and sentenced to twenty years in the penitentiary. The offense is alleged to have been committed in Stephens County and, after a trial with a hung jury in that county, was transferred to Taylor County, from which this appeal comes.
On November 16, 1938, appellant shot Dave Wagley, a neighbor. This occurred between 7 and 8 o’clock in the morning and the victim died about noon that day in a hospital in Breckenridge. There is some evidence that bad blood had existed between appellant and deceased for a period of time, but the immediate trouble arose over the title to a small tract of land or lot in what was once laid off as a townsite. Dave Wagley’s
There is a sharp difference in the testimony as to what occurred, Cooper giving his version while Leslie Vick and Homer Perry, the two workmen who had come with appellant, gave theirs. All agree, however, that the deceased approached cursing and, according to the testimony of appellant and his two witnesses, the deceased immediately called appellant very vile names, ordered him off and approached him in a threatening manner with his hands in his pockets.
It is sufficient to say that according to the testimony of Cooper, the act of appellant was unjustified, while the testimony of Perry and Vick with that of appellant raised an issue of self defense.
On the'trial from which this appeal comes the State introduced its proof of declarations made by deceased before his death which were pertinent on the issue of self defense. In their motion for a new trial, as well as on examination of the witnesses, it is admitted that the State did not introduce this testimony on the first trial. The evidence is very important and bears directly on the issue raised by the defense. Just why the State did not introduce this evidence on the first trial is not explained, but the importance of that is of interest to this
Albert Wagley, father of deceased, testified to a statement made by his son in the hospital, as follows: “He said something to me about dying. He told me he was going to die. At that time he was conscious or sane and knew what he was talking about. I did not ask him any questions to lead him on after that. He told me he wanted to tell me something then. He said: ‘Papa, I thought he went home. He said he was going on home and when I looked up why there he stood with a gun. I couldn’t do a thing but just throw up my hands.’ ”
Mrs. Katie Wagley, the widow of deceased, did not testify while the State was introducing its evidence in chief, but was placed on the stand in rebuttal and told the story of seeing her husband stagger immediately after he was shot, of jumping in their car and driving to him, taking him in their coupe and with her father going to a hospital in Breckenridge. She details certain statements of deceased made during the morning and before his death, as follows:
As they were leaving the scene of the tragedy for Breckenridge she quoted her husband as saying, “Cooper, I had an awful sweet little wife.” This evidence was later withdrawn from the consideration of the jury by instruction of the court. Later she said her husband asked her the question, “Won’t you put me away nice?” This statement made on the way to the hospital was also withdrawn from the consideration of the jury by instruction later. She further testified that after they reached the hospital her husband called her to the side of his cot and kissed her and told her that whenever she passed away to have them put her by his side; that he wanted to be buried beside her. This testimony was also withdrawn from the jury by later instruction. Whatever harm resulted from this testimony was of a nature that would linger with the jury regardless of instructions to disregard it. She further testified to the following statement by deceased: “Katie, when I first got up there he first drew a double bitted ax on me.” Further, “Katie, when I first got there he drew a double bitted ax on me, and I asked him to lay it down, and we would settle it without further trouble. I asked him to lay the ax down and we would settle it without further trouble.” When I say “I asked him” I am using Dave’s words.
F. L. Freeland testified that he visited the hospital and heard Dave Wagley say that he tried to get appellant to wait and let the court settle it.
The testimony embracing the declarations of deceased made in contemplation of death was introduced at the close of the trial of the case in the town of Eastland, some sixty miles from Breckenridge, and it is reflected that appellant had no indication of the nature of this testimony until it was introduced by the State.
Appellant filed a motion for a new trial in which it is presented, among other grounds, that they had since the trial of the case discovered new evidence pertinent to the main issue in the case, that of self defense, and particularly as relating to the dying declarations of deceased and also on the question as to whether or not he contemplated death at the time such statements were made. Attached to this motion were the following affidavits:
One by Mrs. Billington saying that she was a nurse in the hospital at the time Dave Wagley was there, detailing the things that took place, in which she said that Wagley was, “Shouting a great deal in anger and cursing, which was all to the effect that he was going to be sewed up and go home. He repeated a number of times that he was all right and was cursing Alex Fambro a great deal. He told his wife not to cry; that he was not going to die and would go back home in a little while and be all right.” She said, further that in her opinion he never thought that he was going to die. She was in and out of his room, but with him most of the time. She declared that she did not hear him make the statement testified to by his father as to the occurrences at the time of the killing.
The affidavit of Dr. P. C. Wray is attached in which he
The attorneys in the case also attach affidavits showing diligence to secure the testimony of the doctors and of the nurse.
The principal question presented on the appeal is whether or not the trial court should have, under this state of facts, granted appellant’s motion for a new trial.
We must admit in the beginning that we are confronted with the consideration of a question under circumstances different to the ordinary. Appellant had gone through one trial of his case. His attorney had sought evidence from the doctors and the nurse as to what took place and they declined to tell. True, they could have brought them into court as witnesses and compelled them to testify; yet, it is doubtful if an ordinary prudent and skillful attorney would have done so. When witnesses decline to say what their testimony will be, they are not ordinarily placed on the stand as witnesses for the party calling them unless there is some circumstances making it necessary to do so, or unless the attorney has advice by which he feels secure in doing it. Viewed from the standpoint of the appellant and his attorneys, it is not unusual that they failed to call these witnesses, even after the other parties had testified. The evidence as to the state of mind of Dave Wagley at the time he made the statements, as well as the statements themselves, come to the court shrouded in mystery which would
Appellant insists that he had a right to shoot Wagley in defense of his property. The pertinent facts on this issue are hardly disputed. Appellant seems to have been the holder of prior record title and apparently the owner of the property. However, this had been submitted to a civil court with jurisdiction to determine the rights of the parties. He was attempting to remove some of the pipe from an old well, but there is no evidence that the deceased was trying to harm the property, to remove any of it or to do other than insist that the matter of ownership be settled by the courts. He claimed to be in possession and appellant so alleged in his suit. If appellant had desired to possess his property, the courts offer a legal remedy. Under all the circumstances we do not believe that his right to defend his property was sufficiently invaded to warrant the taking of a life.
■ While it may be said that the act of the court in withdrawing certain evidence from the jury after its admission did not
For the failure of the court to grant appellant’s motion for a new trial on the ground of newly discovered evidence, the case is reversed and remanded for new trial.