Parker v. State , 138 Tex. Crim. 478 ( 1939 )

Appellant complains in his motion for a rehearing of our original opinion herein on account of our statement of what are the facts shown by the State's testimony. It is true that such opinion does not contain a complete account of all the facts, but merely the salient facts proven by the State in order to show whether a sufficient basis was there present upon which to place the verdict of the jury.

The testimony does show that at the time the deceased was killed he had a pistol in his hand, and it further shows facts present from which the jury could have decided that such pistol was not fired at the place where the deceased met his death.

Complaint is also made of the statement that the deceased was shot in the back. Such statement was possibly based on the testimony of the witness Alford, as follows: "I was present when the body was undressed. I saw the location of the wounds. The bullet went in his back and came out here. There was a hole through a little jacket and un(der) clothes on the back and there was not a hole through the underclothes in front; and when he undone the collar and tie the bullet was laying right there." Again we find in Charlie Minton's testimony the following: " * * * I know the position of the wound on the body. The wound was right under that right shoulder, * * * a little behind the right arm; about right along there. I didn't see any shot there on that arm. The shot came out right along there, about under the left titty."

We think under the testimony above quoted one would be justified in saying that Mr. Amey was shot in back of the right shoulder, and the shot came out at about the left nipple. We do think the following statement inapt and should be withdrawn from the original opinion: "Even if the deceased had run out into the road, he did not, according to the State's witnesses, have a pistol in his hand at the time." Otherwise than the just above quoted paragraph, we are of the opinion that the statement of the State's testimony fairly reflects the record before us. It is surely understood that such a statement, however, does not attempt to set forth all the testimony, nor to offer the appellant's defensive testimony. Same was merely set forth in order to show that there was a sufficient amount of testimony in favor of the State upon which to uphold the verdict of the jury. Had they accepted the appellant's version of the transaction as shown by his witnesses, there would have been no appeal present on account of the fact that his witnesses showed a clear case of self-defense. The jury, however, as arbiters of the facts, accepted the State's version thereof, and we are bound thereby.

We find an exception to the trial court's refusal to allow appellant to introduce an order dismissing a previous indictment for this same offense. It appears that this killing took place in the year 1932; that appellant fled and was finally aprehended six years thereafter in the State of North Carolina and brought back to Texas in 1938, and again indicted for this offense. That he was a fugitive was amply proven not only by the officers but also by his own testimony, and we can see no materiality to the fact that the old indictment was dismissed. Surely on account of his continued absence such a dismissal could have naught to do with the trial of this cause. We see no error in the trial court's refusal to allow the introduction of this order of dismissal.

There was a wide variance between the testimony of the State's witnesses and that of the appellant. The jury seemed to have accepted the version of the State's witnesses, and, according to their testimony, there was sufficient testimony to show appellant's guilt. The case of Martin v. State, 126 S.W.2d 649, is not a case in point herein. It might be inferred from the State's testimony that the deceased did not fire his pistol at the scene of the killing. The State's case herein is much stronger than the presented facts in that case.

The motion for a rehearing will be overruled.