Owen v. State , 93 Tex. Crim. 145 ( 1922 )

Under an indictment for murder, the appellant was convicted of manslaughter and punishment fixed at confinement in the penitentiary for a period of three years.

That the appellant killed the deceased Washington is not controverted. A few days before the homicide, a difficulty took place between the wife of the appellant and the wife of the deceased. The wife of appellant received some severe injuries. The evidence is conflicting touching the episode, but according to appellant's version, when he sought to interfere, he was attacked by the deceased, who had a shotgun in his hand; that appellant fled and was fired upon. Subsequently, the appellant saw the deceased in possession of a shotgun and was also informed that he had one and that he had made threats to kill the appellant on sight.

According to the appellant, while he was driving his team and he and his stepson, Nathaniel Drake, were riding in a wagon, they met the deceased, who was also in a wagon, driving his team. The deceased was armed with a shotgun and fired twice at the appellant, who, as soon as possible, drew his pistol and returned the fire, shooting one time. Both of the teams became frightened, and that of the deceased circled and turned in the same direction that the appellant was driving, and at a turn in the road deceased fell or jumped out of his wagon, still having possession of the gun. The appellant, fearing that deceased would shoot him as he passed, jumped out of his wagon, took the gun from the deceased and struck him with it. Quoting him, he said:

"I don't know how close I jumped out to him, but I jumped out right by him; my team was running and Nathaniel was driving; I was in the wagon with my pistol in my hand, and Young was on the ground, and instead of driving on, I jumped out when I got there to him and grabbed his gun and then took his gun and beat him with it. Then Nathaniel had come up, and we walked on off, 10 or 12 steps and I looked back and Young was crawling on his all-fours. . . . Nathaniel had the gun then, and I got it and we both went back down there where Young was. I did not have my pistol then, Nathaniel had the gun and the pistol, and I took the shotgun and we both went to the body. I did not take the shotgun and proceed to beat his brains out; I never beat his brains out. I took the gun barrel in my hands and beat him in the head with the stock. He was not doing anything when I left him. I went to Mr. Alf. Bills then and reported to him that I had killed the son-of-a-bitch."

The parties were negroes, and the homicide took place near the home of Mr. Bills, a white man. Standing in his cornfield nearby, there was a plow from which after the homicide, the singletree was missing. This was found near the deceased with blood upon it. There was blood upon the ground in several places near where the body of the deceased was found, ranging a distance from ten to fifteen feet. The singletree, after the homicide, was found near the body. The difficulty occurred early in the morning. Mr. Bills had not gotten out of bed. He heard two shots, sounding just alike, apparently fired from a rifle or pistol. He arose from his bed and saw the deceased standing in his wagon and driving his team at a rapid pace, followed by the wagon of the appellant, in which were the appellant and Nathaniel Drake. The third shot was fired from behind Washington. Something happened to Washington as he reached the bend of the road. He either got out or fell out of the wagon and was upon the ground, and the appellant was approaching him on foot, about forty or fifty feet distant. Washington was on all-fours, and appeared to be trying to rise. Nathaniel Drake was also out of the wagon and the witness could not discern what the appellant had in his hands. The witness, fearing that he might be shot, retreated to the barn. A few moments later, appellant came to him and said "to `phone for the law; that he had killed the son-of-a-bitch; that the deceased had shot at him a day or two before, and again that morning, and that he (the appellant) had killed the deceased with his own gun."

Another witness heard the report of two shots, both sounding alike and apparently fired from a pistol. Some moments later, he observed the appellant and Nathaniel Drake, and also observed the deceased, who was on the ground, apparently trying to get up. Appellant and Drake were about sixty or seventy steps away from the deceased and Drake had a gun in his hand. He (Drake) turned around and said: "Don't you get up, you son-of-a-bitch, I will come back and kill you." Appellant looked around and said: "Let me have the gun, I will go back and kill the son-of-a-bitch." Drake gave him the gun and they both went back. Washington was not doing anything, and appellant struck him several times with his gun, holding the barrel and striking him with the stock. The witness saw him strike three times.

The evidence showed that the deceased had a number of wounds upon him, some of them crushing his skull, and that they appeared to have been made by some blunt instrument.

The indictment was returned October 12, 1921. The trial took place January 23, 1922. A motion for a continuance was made. On December 12th, the case was continued or postponed upon the motion of the appellant because of the sickness of his wife. The second motion for a continuance, filed on the 23rd of January, was overruled. The absent witness Smith, according to the averments in the application, would have corroborated appellant's testimony to the effect that Smith had told the appellant on the day before the homicide that the deceased had threatened to kill him on sight. It appears that the first process applied for to secure the testimony of Smith was on the 13th day of January, 1922, about ten days before the trial, and about three months after the indictment was filed and appellant arrested. The appellant relied upon the clerk to issue the subpoena and mail it to the Sheriff of Hardeman County. This, it seems, the clerk failed to do. The first inquiry made of the clerk upon the subject seems to have been on the 23rd day of January, the day the case was called for trial. The clerk informed the appellant at the time that the process had been issued and mailed. It later developed that the clerk was mistaken; that he had neither issued nor mailed it. In the absence of an averment in the motion for a continuance furnishing a satisfactory excuse for the failure to make earlier application for the process, the law's demand for diligence was not satisfied, nor was it sufficient to rely upon the clerk's promise to issue the process. Brown v. State, 32 Tex.Crim. Rep.; Dean v. State, 29 S.W. Rep., 477; Washington v. State,35 Tex. Crim. 154; Bosley v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 878; Furnace v. State, 79 Tex.Crim. Rep., 182 S.W. Rep., 454; Wyatt v. State, 80 Tex.Crim. Rep., 190 S.W. Rep., 153; Marta v. State, 81 Tex.Crim. Rep., 193 S.W. Rep. 323; Payne v. State, 84 Tex.Crim. Rep.; McClendon v. State, 84 Tex.Crim. Rep.; Ice v. State, 84 Tex. Crim. 509; Albertson v. State, 84 Tex.Crim. Rep.; Morse v. State, 85 Tex.Crim. Rep.; Stracner v. State, 86 Tex. Crim. 89; Armstrong v. State, 88 Tex.Crim. Rep., 227 S.W. Rep., 487; Moore v. State, 89 Tex.Crim. Rep., 229 S.W. Rep. 509; Morse v. State, 85 Tex.Crim. Rep., 210 S.W. Rep., 965; Williams v. State, 10 Texas Crim. App., 114; Hailes v. State, 10 Texas Crim. App., 490; Giles v. State, 148 S.W. Rep., 317; Price v. State, 53 Tex.Crim. Rep.; Dove v. State, 36 Tex. Crim. 107; Porter v. State, 80 Tex.Crim. Rep., 190 S.W. Rep., 159; Vernon's Texas Crim. Stat., vol. 2, p. 311; White's Ann. Code of Crim. Proc., Sec. 501.

Even if diligence were sufficient, taking into account the verdict rendered, we would not feel that a reversal was warranted. The testimony of the absent witness was relevant to the issue of self-defense. The testimony shows that after the deceased had been struck and wounded and was on the ground apparently trying to get up, and after appellant and Drake had traveled a number of yards distant and were entirely out of danger from the deceased, and were in possession of the gun as well as the pistol, they decided to go back and kill him, and did go back and strike him several times with the butt of the shotgun and produced his death.

The appellant had no right to expect a verdict more favorable than manslaughter. The indictment charged that the appellant killed the deceased by beating him with a gun and singletree. The court instructed the jury in accord with this averment. Complaint is made of the failure of the court to instruct on the law of circumstantial evidence, the position taken being that it was only by circumstantial evidence that the use of the singletree was proved. We do not regard the complaint meritorious. It was proved by direct testimony, even by the testimony of the appellant himself, that he killed the deceased by beating him. There were circumstances indicating that some of the blows were struck with the singletree. The corpus delicti was proved by direct testimony. We understand that the law requires a charge on circumstantial evidence only in those cases in which the State relies for a conviction upon circumstantial evidence alone. Post v. State, 10 Texas Crim. App., 598; Cyc. of Law Proc., Vol. 12, p. 633, par. 14; Thompson v. State, 33 Tex.Crim. Rep.; Hardin v. State, 8 Texas Crim. App., 653; Jackson v. State, 62 S.W. Rep., 914; Upchurch v. State, 39 S.W. Rep., 371; Beason v. State,43 Tex. Crim. 442; Lindley v. State, 8 Texas Crim. App., 445. We think the evidence warranted the State's counsel, to argue that one of the weapons used in killing the deceased was a single-tree.

Discerning no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING December 20, 1922.