Morgan v. State , 121 Tex. Crim. 424 ( 1932 )

In substance, the various attacks upon the judgment discussed in the original opinion are renewed in the motion for rehearing. Additional rehearsal of the facts in detail is not deemed necessary. The admissibility of the testimony going to show the conduct of the appellant towards the wife of the deceased is deemed supported by the authorities cited in the original opinion and others, namely, Haley v. State,84 Tex. Crim. 629, 209 S.W. 675, 3 A. L. R., 779; Rice v. State, 54 Tex.Crim. Rep., 112 S.W. 299; Anderson v. State,94 Tex. Crim. 161, 249 S.W. 855.

Mrs. George Gordon (wife of the deceased) declared in her testimony that about the 25th of February, 1930, the appellant was guilty of insulting conduct towards her; that she told the deceased about the conduct of the appellant. The Gordon family moved to another neighborhood. She also testified to the dying declaration of the deceased which is set out in the original opinion.

The daughter of the deceased testified that she was present ta the time the dying declaration was made. She also testified that, when her father left home on the 19th of August (the day he was killed), she put a pistol in the back of his car; that after the tragedy she found the pistol in the same position and locality in which she had placed it.

The testimony of the appellant, Martin Morgan, and Henry Ward is descriptive of the facts immediately attending the homicide according to the theory of the appellant. The testimony of the appellant is summarized as follows: He had been advised a number of times of threats to take his life by the deceased. Appellant, in company with Ward, went at nighttime to Baker's gin, where the appellant had previously worked and was at the time seeking renewed employment. Appellant and Ward parked their car awaiting the arrival of the man to whom appellant expected to make application for work. While there, some one passed in a car. After traveling a short distance, the man stopped his car, turned the lights on Ward and Morgan, got out of his car, and when four or five feet away from them, said: "Martin, is that you?" Appellant replied: "Yes, sir." Deceased said: "Get out of there. I want to settle with you. You know the word I sent you." He further said: "Who is that boy with you?" Appellant replied, "A boy from West Texas." Appellant had his pistol lying by his side in the car. As he jumped out of the car, he observed something in the hands of the deceased, which he could not identify as a pistol or other deadly weapon. Immediately after getting out of the car, appellant began firing and continued to fire until the gun jammed, when he left without knowing whether his shots had hit the deceased or not. Appellant explained his possession of the pistol in a manner indicating that he was not expecting to meet the deceased. According to the appellant, he fired the shots, having in mind the threats communicated to him and believing his life in danger.

Ward's testimony is in substance as follows: While sitting in their car waiting to see the engineer of the gin, a car passed. After traveling a short distance the car stopped, turned around, and, as it approached with the lights on them, the driver said: "Martin, is that you?" Appellant replied: "Yes, sir." The stranger then said: "Get out, I want to settle with you. Who is that boy with you?" Appellant said: "A boy from West Texas." At that time the deceased was about two steps from the car of Ward and the appellant. From the witness, we quote: "I noticed the man at the time closely. He had something in his right hand, I could not swear what it was, I don't know what it was. * * * As the shooting began I was getting out of the car. * * * I did not know this man that walked up by the side of the car. I didn't know a man by the name of George Gordon. * * * After the shooting I went back to the car and drove home."

On cross-examination, the witness said that the shots all sounded alike. After the shooting Morgan asked: "Did I hit that fellow?" Ward said: "I told him I didn't know." The witness could not say that there were any shots fired by the deceased, but that a number of shots were fired. As stated above, he said they all sounded alike.

Circumstances were introduced which were sufficient to show that the deceased used no pistol. The testimony of the appellant and his witnesses does not affirm that the deceased was armed with a pistol or other dangerous weapon. That the appellant had been told that, because of his insulting conduct towards the wife of the deceased, threats bad been made to take his life, was affirmed by him and his witnesses. The testimony of the wife of the deceased touching the misconduct of the appellant towards her was denied by the appellant.

If the bills of exception complaining of the testimony introduced by the state on the issue of a suspended sentence and bearing upon the reputation of the appellant were so comprehensive as to recite all of the facts justified by the statement of facts, there would be, in the opinion of this court, no harmful error disclosed.

Murder, as defined by the statute, is but a single offense, with the penalty dependent upon the finding of the jury that there were mitigating facts upon which they could conclude that in committing the homicide the accused acted without malice. See Herrera v. State, 117 Tex.Crim. Rep.,36 S.W.2d 515. There is no discretion vested by law in this court, where the evidence shows murder with malice aforethought, to annul the verdict because there was evidence upon which the jury might have mitigated the penalty.

Since the affirmance of the case, we have given both the law and the evidence the most careful scrutiny and consideration of which the members of this court are capable, but are constrained to conclude that the record, as presented, does not authorize us to interfere with the verdict rendered by the jury and approved by the trial court. See Gilliam v. State,113 Tex. Crim. 108, 18 S.W.2d 637; Hawkins v. State,99 Tex. Crim. 571, 270 S.W. 1025.

The motion for rehearing is overruled.

Overruled.