77 S.W. 461 | Tex. Crim. App. | 1903
This is a case in which a negro man was assessed the death penalty for killing his wife. A careful review of the testimony shows there has been no race discrimination in the selection of grand and petit juries in Johnson County; therefore, there was no error in overruling appellant's contentions along these lines. The witnesses introduced were men in the main of unusual intelligence and high standing. Among other witnesses was Dr. Barnes, a negro physician whose testimony was rather incisively to the effect that there were no negroes in Johnson County qualified to sit upon juries. He states that he was acquainted with practically all of his race in the county. Without going into the details, we hold the evidence fails entirely to show race discrimination in the matters about which complaint is made. This case perhaps is not as strong as either of the following: Hubbard v. State, 4 Texas Ct. Rep., 660; Parker v. State, 3 Texas Ct. Rep., 637; Martin v. State, 6 Texas Ct. Rep., 909.
While Barnes was testifying in behalf of appellant's motions to quash indictment and venire, he was asked if he "thought there were, among the colored voters of Johnson County, any number who could read and interpret the charge of the court, and as to his opinion as to the general qualification of the colored voters of Johnson County for jury service." The bill fails to set out the answer of the witness, or state what his testimony would have been. The error seems to be predicated entirely, so far as the bill is concerned, upon the question asked.
Witness Boyd was permitted to testify that he resided but was not in Cleburne at the time of the killing; was in Waxahachie; knew defendant; a few days before the killing appellant came to his place of business, and wanted to buy a butcher knife; he first called for Mr. Cyrus. "I showed defendant some knives, but he did not buy. His objection being that they were not good steel; that he wanted a knife that would not bend or break. He said he wanted it for a bread knife." That witness went to Waxahachie that night and heard of the killing while at Waxahachie, perhaps next day; that, to the best of his recollection, appellant was in his place of business looking at the knives two days before the killing. This was objected to because not in rebuttal, irrelevant, immaterial, and could only have the effect of prejudicing the jury against appellant. The *319 court qualifies the bill by stating that, while appellant was on the stand testifying in his own behalf, he denied trying to buy the knife from witness Boyd, and Boyd's testimony was introduced in rebuttal of that statement of appellant. This testimony is clearly admissible, in rebuttal of defendant's testimony, and is original evidence to prove the fact that defendant was endeavoring to purchase a knife shortly before the homicide. The testimony adduced on the trial is of that character which would have permitted its introduction from either standpoint.
The facts show that, subsequent to investigating the knives at Boyd's appellant bought a butcher knife, and the day of and preceding the homicide ground it very sharp; and, shortly afterward, went to where his wife was and cut her in a fearful manner, inflicting as many as a half dozen fatal stab wounds. If the fact that he was seeking to purchase this knife a day or two before the killing was of material character, it could be introduced at any time before the closing of the argument; for such is the provision of our statute.
The county attorney remarked to the jury in his argument: "The defendant's counsel could have asked defendant about his wife cutting him in former difficulties, but he failed to do so." One of the grounds of objection to this is that it was prejudicial in view of the fact that, while defendant was testifying in his own behalf, his attorneys were not permitted to prove by him facts and circumstances of former altercations, if any, between himself and his deceased wife. The court in his qualification says he did allow "defendant to testify to the cause of all difficulties between himself and deceased; but, as defendant testified he cut and stabbed her beacuse she said she could get another man to give her all she wanted, the particulars of injuries inflicted by one upon the other months and years before became wholly immaterial. There was nothing introduced making evidence of stabs inflicted by deceased upon defendant months and years before the homicide material."
As the record is, the use of this language did not prejudice, because the court instructed the jury at the time to disregard the remarks of the county attorney; and then gave a written instruction to the same effect. The evidence is ample, showing that appellant and his wife had had previous difficulties, and that perhaps she may have been the cause and produced the occasion and was the aggressor in some of the former difficulties, and had finally left him. The evidence is sufficient to support the judgment. It was a most brutal, savage killing. If there is any extenuating fact in the case, it is founded in his asserted love for and jealousy of his wife. It seems from the evidence that her reputation was not above suspicion in regard to chastity; in fact, the evidence on that point was damaging to the character of deceased; of all of which appellant seems to have been aware, and was the occasion of some, perhaps all, of their troubles. She had finally separated from him and refused to be reconciled. He undertook to buy a knife from Boyd a day or two before the killing; he failed to find one to suit his purpose. The day *320 of the killing he found one, and ground it until it was very sharp. Having done this, he repaired to the place where his wife was living, and butchered her in a most outrageous manner, cutting out her bowels, cutting her throat, and stabbing her in some sixteen places. Either of a half dozen of these wounds, the physicians say, was fatal. As we find the record there is no error, and the judgment is affirmed.
Affirmed.