Scott v. State

BEAUCHAMP, Judge.

The homicide for which appellant is charged took place in the City of Austin. A conviction resulted from the first trial, in Travis County, with a five year sentence. The case was reversed (see 149 Tex. Crim. Rep. 4; Scott v. State, 190 S. W. (2d) 828) and thereafter transferred to Bastrop County. The present appeal is from a conviction with a sentence of twenty-five years in the penitentiary.

There is no material difference in the statement of facts as found in the two appeals. The statement in the former opinion is here referred to and is considered sufficient as a basis for the discussion of the question presented at this time.

It is also true that the questions of law raised, all of which relate to the admissibility of evidence, were likewise in the former appeal and, while they were considered, the case was reversed because of an error in the court’s charge and the questions as to the admissibility of the evidence were not discussed in the opinion. We considered then as now that they reflected no error.

Recalling the evidence in the former case, trouble. had existed between appellant’s son and a Mr. Stark, whose wife was a sister to the deceased Jessie Singleton for whose murder the appellant was convicted. The Starks were living in a house owned by Scott-and the difficulty which culminated in the double killing has extended over a period of several weeks. The state was permitted, over objection, to prove things said and done by appellant and his deceased son over this period of time, even up to and including the morning of the killing. Some such statements may be classified as threats; but the effect of all was to show the bitter feeling which appellant himself had against the Starks, in whose behalf Singleton appeared. When the Scotts came to the residence in the morning and demanded the immediate eviction of their tenants, Mrs. Stark protested and threats were made against her. She called for her brother and for the officers. The brother appeared first, went into the house and consulted Mrs. Stark while appellant and his son remained at or near the street. Singleton then went out, with his gun displayed at his belt, and immediately approached the subject. Appellant knew that he was Mrs. Stark’s brother. He knew that a conference had just been had between them. Singleton was taking the place of his sister, whose husband was out of town, and the bitter feeling which Scott had for Mrs. Stark and her husband would naturally be imputed to him for Singleton, under all of the circumstances of the case.

Appellant took the witness stand in his own behalf at this trial and denied that he shot Singleton, claiming that all shots were fired by the son after Singleton had first fired at him. He disclaimed any part in the tragedy, though admitting the application of the law of principals. It is a pertinent inquiry, on the part of the jury, to find and determine the feeling existing between appellant and the deceased Singleton. It appears to the writer that this conclusively determines the issues against appellant.

We have carefully considered the authorities cited in appellant’s brief and do not think they are pertinent. Threats were made against Singleton originally, but they were made against the Starks who were directly connected with the difficulty. This fact distinguishes the instant case from all of the authorities which appellant has cited on the subject of threats. It is particularly noted that Texas Jurisprudence, Vol. 22, pages 767-8, lays down the rule as quoted in appellant’s brief, that: “A previous difficulty between the defendant and a third person may be proved if it led up to the killing, or involved the deceased in any way, or tends to reveal the defendant’s motive or state of mind. But if the difficulty was in no way connected with the homicide, evidence of it is inadmissible.” See also authorities cited thereunder.

We believe that this general discussion sufficiently gives the view of the court on each and all of the questions raised by the appellant.

The judgment of the trial court is affirmed.

HAWKINS, P. J., absent.