Marshall v. State , 104 Tex. Crim. 619 ( 1926 )

The appellant was convicted in the District Court of Wichita County for the offense of murder, and his punishment assessed at twenty-five years in the penitentiary.

The record discloses that the appellant possessed and was cultivating a few acres in cotton just outside the city limits of Wichita Falls; that the deceased, J. E. Swayzee, was the owner of about fifty head of dairy cattle and was operating a dairy about a mile and a half from said cotton patch; that the cattle belonging to the deceased had been depredating upon said cotton, and on the night preceding the killing, about 5 o'clock in the morning, the appellant had corralled quite a number of said cattle, some of which he had tied to trees and posts in the lot, and was there guarding same with a Winchester when deceased arrived and was killed inside of said corral or lot. It was the contention of the state that the appellant had prepared himself for the homicide by borrowing this Winchester from a neighbor, and was guarding said cattle with the intention of killing the deceased in the event he failed to pay the damages which appellant claimed the cattle had done to his cotton prior thereto, and that the deceased, having missed his cattle, had gone to said corral early in the morning for the purpose of getting them, and upon entering said premises he was killed by appellant without cause or provocation and while he was unarmed. The appellant's contention was that the deceased entered the lot and began to untie the cattle, against his protest, and that when he requested deceased to desist, the latter pursued him with a knife, and that, believing his life to be in danger, he shot and killed the deceased. The court charged on murder, manslaughter, self-defense and defense of property.

The record contains fifteen bills of exceptions. Bills of exceptions 1, 2, 3, 8, 9, 10 and 11 complain of the refusal of the court to give to the jury appellant's special charges involving his right to impound said cattle and retain possession thereof against any forcible attempt made by the deceased to take possession of same, and his (appellant's) right to defend such possession to the extent of killing the deceased, in the event it became necessary. These bills, as presented, show no error. We think the court, in his general charge, sufficiently covered the law applicable to said matters complained of, and in a manner favorable to appellant, especially in view of the fact that appellant, while a witness in his own behalf, positively testified that he did not kill the deceased because the latter was attempting to take charge of the cattle against his consent, and would not have killed him on that account at all, but based his defense solely upon the theory, and so testified, that his only reason for killing deceased was that deceased was advancing upon him at the time with a knife in a threatening manner and that he killed deceased in order to protect himself against death or serious bodily injury at the hands of said deceased.

Bill No. 4 complains of the refusal of the court to give in charge to the jury appellant's special charge to the effect that the state, having introduced in evidence his confession which was taken shortly after the homicide, would be bound thereby unless said statements were shown to be untrue. The court qualifies said bill as follows: "The state's case in chief was made independent of the confession, such confession was used by the state in rebuttal after the defendant had testified." This bill, as presented, shows no error. It appears that upon the trial the appellant contended, and so testified, that the deceased, at the time of the homicide, was making an assault upon him with a knife, and that the state thereafter introduced in rebuttal of said testimony the aforesaid confession, wherein the appellant stated that the deceased was making a demonstration as if to draw a gun when he shot him. It appears that this evidence was only used in rebuttal of the defendant's own testimony. This court, under similar circumstances, has held that it is not error to refuse to charge on confessions. See Branch's Ann. P. C., Sec. 73, for collation of authorities. See also Casey v. State, 54 Tex. Crim. 587, 113 S.W. 534; Cook v. State, 71 Tex. Crim. 532,160 S.W. 465; Pickens v. State, 86 Tex.Crim. Rep.,218 S.W. 755; Simpson v. State, 97 Tex.Crim. Rep.,263 S.W. 273.

Bills 5 and 6 complain of the action of the court in permitting the state to lead the witness Donohue and interrogate him concerning a former statement made by him to the effect that upon examining the premises where the homicide occurred he had seen no tracks leading from the body of the deceased in the direction where the appellant claimed to be standing at the time of the shooting. These bills, as presented and qualified, show no error.

Bill No. 7 complains of the argument of the District Attorney to the jury wherein he stated, in effect, that appellant had put certain witnesses on the stand for the purpose of detracting the jury's attention from the main issue and in an attempt to get the jury "to turn loose this cold-blooded murderer." We are not prepared to say that this argument, considered in the light of the record, is of such a nature as would authorize a reversal of the case, or that the testimony of the state's witnesses, if believed, was not a sufficient basis to warrant such a conclusion on the part of the District Attorney. Price v. State, 220 S.W. 91; Boxley v. State,273 S.W. 592.

Bill No. 12 complains of the action of the court in permitting the state to show by the witness Melton that in a conversation with deceased, wherein the witness and deceased were settling the damages that deceased's cattle had done to witness' cane, the deceased stated that said claim was reasonable enough, and in that connection stated, "If Mr. Marshall would settle half as reasonable as I, we would make a settlement all right." Appellant contends that this testimony was prejudicial to his rights and was a transaction between the witness and deceased not connected with this trial. This bill, as presented, shows no error. The record discloses that the appellant was present and took part in said conversation, as shown by the qualification on said bill.

Complaint is made in bill No. 14 to the court's refusal to permit appellant to show by the witness Tucker, the "pound man," as to how long he had been receiving complaints against the Swayzee cattle, which testimony was excluded upon the ground urged by the state that the same was immaterial and irrelevant. Appellant contends that it was admissible for rebuttal purposes. This bill, as presented, and considered in the light of the court's qualification thereto, shows no error.

Bill No. 15 complains of the action of the court in stating, while the witness Donohue was on the stand, that he was the appellant's witness. It is contending that this remark on the part of the court was in effect a comment on the weight of the witness' testimony in the presence of the jury. We are unable to agree with this contention. Hill v. State, 262 S.W. 750.

The sentence in this case orders appellant to be confined in the penitentiary for twenty-five years. The same is here amended, and he is ordered to be confined therein not less than five nor more than twenty-five years.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed, and, as amended and reformed, it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.