Ruffin v. State ( 1927 )

Conviction of murder, punishment ten years in the penitentiary.

Appellant and deceased were brothers, both married and living not far apart on their father's farm. We gather from the record that deceased had not finished gathering his crop when appellant turned a cow into the field in which both had farmed that year. Deceased came to appellant's house; they had hot words, following which deceased returned hastily to his home near by, according to the testimony of appellant and his witness, Jones, threatening to get his gun and come back and kill appellant. Jones and appellant testified they saw deceased get down and go into his house and come out and start pretty fast back toward appellant's house, but the wife and sister of deceased caught him, and witnesses said they heard him tell them to turn him aloose, that he was going to kill that s___ of a b____, and that if they did not let him do it then he would next week. They further said the women carried deceased back into his house, and presently he came out and came on down to appellant's house, the women coming with him holding to the bit of the bridle on the animal he was riding. As to what occurred at the home of appellant when deceased got there, there is sharp conflict, the two women swearing that appellant shot deceased in the back with buckshot and that deceased was doing nothing at the time. Appellant and Jones swore that when deceased rode up appellant asked him "Well, Early have you come back to kill me?" To which deceased replied that he was damn right, that he was going to kill appellant, and that at this juncture, deceased put his hand in his bosom, whereupon appellant raised up his gun, firing once in the air but a second shot into the body of deceased, from which shooting deceased died that night. It is admitted that deceased had no weapon, and the appellant based his right to kill on apparent danger as the matter appeared to him at the time. Jim Jones, Sr., swore for the defense that he was about a quarter of a mile from the place of the shooting, and that his son David, who was an eye witness, came over and told him what had been done. He went to the place and helped carry deceased to his home. On the way deceased told him that appellant, "Got me down but if it hadn't been for Eldora and Georgia I would have got him." David Jones testified that deceased said to him, "G__d d___n him, he got me but I am not afraid of him yet * * * if it hadn't been for my wife I would have got him." No witness for either side testified to any movement, word, act, or demonstration on the part of the wife and sister of deceased at the place of the killing which could be construed as having hindred or prevented deceased from making any attack on appellant which he might have then purposed.

In this condition of the record we are called on to say whether the refusal of a continuance because of the absence of Jim Jones, Jr., was error. By him appellant expected to prove that while assisting in the removal of deceased to his home after the shooting, the latter said if it had not been for his wife and sister he would have killed appellant at the time. It is plain that this is substantially what was testified to on the trial by Jim Jones, Sr., and David Jones, and the making of this statement is not disputed. It is further clear that deceased did not mean by this statement to say any movement or attempt of his at the scene of the killing was frustrated or prevented by his wife and sister, but that he referred to what took place at his house before coming to the scene of the shooting, it being shown by witnesses for both the state and the defendant that the wife and his sister at the house remonstrated with him and insisted that he not go down to kill appellant and that he have no further trouble with him. From no point of view can we see injury to appellant by reason of the absence of Jim Jones, Jr. The wife and sister of deceased testified to the threatening acts, words and conduct of deceased at his home, to their remonstrance and interference with his purpose to immediately return and have trouble with appellant, and to their persuasion that he change his plan. The application for continuance was also made on account of the absence of other witnesses, but we observe that they were witnesses to character, and that witnesses who testified on the trial amply supplied testimony on said issue without dispute. We deem the refusal of the application for continuance no abuse of the discretion of the trial court. Duncan v. State, 30 Tex.Crim. App. 1; Parks v. State, 35 Tex.Crim. Rep.; Wright v. State, 37 Tex.Crim. Rep..

There are two bills of exception complaining of the refusal of special charges, but examination of the main charge makes apparent the fact that the court fully covered the legal issues involved in said special charges, and that the instructions given were as pertinent and as favorable to appellant as appears in the special charges referred to.

The evidence seems ample to support the verdict and judgment. Our attention is called to the fact that the judgment and sentence ignore the provisions of the indeterminate sentence law, and that appellant is adjudged guilty and his punishment fixed both in the judgment and sentence at ten years confinement in the penitentiary. The judgment and sentence will be reformed so as to adjudge and sentence appellant to confinement for a period of not less than five nor more than ten years in the penitentiary, and as reformed the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.