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74 Tex. Crim. 16

166 S.W 1172

Willis v. State

Court of Criminal Appeals of Texas

Decided April 15, 1914

Court of Criminal Appeals of Texas · decided 1914-04-15

<p>1.—Murder—Transcript—Delay.</p> <p>See opinion for pointing out inexcusable delay and negligence in preparing transcript and filing same in this court.</p> <p>8.—Same—Manslaughter—Charge of Court—Antecedent Matters—Provocation—Insult to Pemale Relative—Rule Stated.</p> <p>If insult to a female relative is relied on to reduce the offense to man- ' /slaughter, the killing must take place at the first meeting after the occurrence, .•and the court should so instruct the jury, and under no phase of the case could /a previous insult be adequate cause where the parties had met and passed such previous insult, and such previous insult can only he considered in passing on ■defendant’s state of mind, etc., at the time of the homicide. In all other cases, the provocation must arise at the time, and the antecedent circumstances can be looked to in passing on the adequacy of the cause and the state of mind of the person on trial.</p> <p>3. —Same—Case Stated—Letters—Adequate Cause—Charge of Court.</p> <p>Where, upon appeal from a conviction of murder, it is not shown by the record that defendant knew of any misconduct of deceased after he had seen .and passed him except such as might be inferred from the letter he received from his wife, and the court aptly in the special charge given instructs the jury that if this letter led defendant to believe that deceased and his wife had been guilty of improper conduct, he would be guilty of no higher offense than manslaughter, there was no error, the court instructing the jury besides, to consider in connection therewith all the facts and circumstances in evidence in the case, both before and at the time of the killing. Davidson, Judge, dissenting.</p> <p>4. —Same—Charge of Court—Manslaughter—Self-defense.</p> <p>Where, upon trial of murder, the court’s charge as a whole, together with a special charge given' at defendant’s request fairly and fully presented the law of manslaughter, as it applied to the evidence and also submitted the law of self-defense and insanity as made by the evidence, there was no reversible error. Davidson, Judge, dissenting.</p> <p>5. —Same—Evidence—Bill of Exceptions.</p> <p>Where the bills of exception were not approved and properly filed, they can . not be considered in connection with the introduction of testimony. Following Rio jas v. State, 36 Texas Crim. Rep., 182.</p> <p>6. —Same—Sufficiency of the Evidence.</p> <p>Where, appellant in his motion for rehearing contended that the evidence would show no higher grade of offense than manslaughter, if he was not insane and did not act in self-defense, but the evidence in the record showed the contrary, the conviction for murder is sustained.</p> <p>7. —Same—Bills of Exception—Want of Diligence—Mistake.</p> <p>Where appellant’s bills of exception were not filed until one hundred days or more after adjournment of the trial court, the plea of mistake, etc., to overcome want of diligence can not be considered, and a mistake of law can not be pleaded.</p> <p>. 8.—Same—Charge of Court—Manslaughter—Special Charge.</p> <p>Where the court’s charge considered in connection with the special charge given was a full, fair and apt presentation of the law as applicable to the testimony, there was no error.</p>

Cited by 1 later decisions — most recently October 1976

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1914-04-15

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¶1 on rehearing.

¶2 May 20, 1914.

HARPER, Judge.

¶3 —Appellant has filed a motion for rehearing, reciting at length the testimony of appellant, and that introduced in his behalf, and says this would show no higher grade of offense than manslaughter, if appellant was not insane, and he did not act in self-defense. Unfortunately for appellant this is not all the evidence in the record, but this court, as did the jury, must take into consideration all the evidence offered in behalf of the State, and from all the testimony adduced pass on the issues raised. Appellant takes his evidence alone, that on Saturday night before the killing wherein he stated he had heard certain matters about his wife leaving her brother’s residence, and that he thought she had fled with deceased; about him going to Temple, what was there said and done, and about the inquiry he made to locate the deceased on Saturday night and Sunday. If the jury had.believed this, doubtless their verdict might have been different. But that such evidence did not present the true state of facts was evidently found by the jury. The State offered evidence that appellant was in Eddy Saturday night and Sunday, and not in Temple, and that he was with deceased in the barber shop at Eddy Saturday night, and with him in the restaurant in Eddy on Sunday evening, and appellant shortly after the killing in talking with George Morris asked Morris if he knew he (Morris) had prevented him from killing Albright Sunday night in the restaurant; that he intended to kill him Sunday night, and he, Morris, walked between them. Morris also said that appellant said that he saw Al-bright in the barber shop Saturday night, and that he intended to. kill him when he got out of the barber chair, and would have done so but that Ferguson, the barber, was between him and Albright and he was afraid he would kill the barber. Morris swears positively he saw appellant and deceased in the restaurant together on Sunday night before the killing the next morning. R. C. Elliott testified he heard appellant make these statements to Mr. Morris. Will England testified for the State, that appellant and deceased were in Ferguson’s barber shop together Saturday night before the killing on Monday. Thus it is shown if the testimony offered by the State is true, and appellant told the truth shortly after the killing, he was not in Temple Saturday night, and none of those things took place that appellant’s attorney narrates so tragically in his argument, based on appellant’s testimony on this trial. In this motion the contention is also made that deceased and appellant’s wife had *25 been gnilty of adultery, yet a few days after the killing appellant testified at the examining trial, and swore, “I do not believe that Bud Al-bright (deceased) ever had intercourse with my wife.” If he did not so believe at the time of the killing, and he so testified under oath, it is not strange that the jury did not give great weight to his testimony on this trial, that he did so believe, and especially so, when he also testified before the grand jury that he did not so believe, and in his testimony before the grand jury appellant admits he saw deceased Sunday night in Eddy, therefore it is not strange that the jury did not place much faith in his testimony on this trial when he said he thought he had run off with his wife Saturday until he met him Monday morning. The other facts which appellant recites in his motion as showing there was no higher grade of offense than manslaughter made by the evidence, are met in the same way by the testimony offered by the State.

¶4 Appellant insists that although his bills were not filed for more than one hundred days after court adjourned, yet as there was a mistake of law as to when they should have been filed, we ought to consider them. In the case of George v. State, 25 Texas Crim. App., 229, a much stronger case was made legally, and from an equitable standpoint, yet the court struck them from the record. Appellant used not one-half the diligence the attorneys in that case show they used; in fact in this case, the use of diligence to have the bills filed is not shown, but a mistake as to the law is only plead.

¶5 The court’s charge, especially when we consider the special charges given at appellant’s request, was "a full, fair and apt presentation of the law as applicable to the testimony adduced on this trial, and the motion for rehearing is overruled.

¶6 Overruled.

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