Cain v. State

The record having been perfected, the appeal is reinstated and the case considered on its merits.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Malachia Johnson by shooting him with a shotgun. The homicide occurred on the 27th of August, 1938, near a country store operated by Ned Harper. Appellant and deceased had been engaged in a domino game across the road from the store. A dispute arose as the result of the failure of the deceased to pay appellant twenty cents which appellant claimed he had won on the games they played. After a wordy altercation appellant left the scene of the game with the statement to the deceased that he "would be seeing him." Going to his home, which was not far removed from the store, appellant remained there about an hour after which time he started back towards the store carrying a shotgun. According to the version of the State, he hid the gun near the place where the domino game had been in progress and approached deceased, saying to him, "You didn't treat me right." Deceased replied, "Yes, I treated you right." Appellant and deceased then began abusing one another, with the final result that appellant called deceased a G__ d___ liar and at the same time ran to the place where he had left his shotgun. Deceased picked up a brick but did not throw it. Appellant turned and said to deceased: "You ain't going to pay, is you?" Immediately after making this statement he shot deceased. Deceased fell on his hands but immediately arose and ran around the store, pursued by appellant. Loading his gun again, appellant followed deceased and fired another shot. Deceased expired a few minutes after the second shot was fired.

According to appellant's version, deceased owed him twenty cents on the domino games they had played and refused to pay him. He left the game for the purpose of going home to do his chores and with no intention of procuring his shotgun and returning to the vicinity of the store for the purpose of killing deceased. After remaining at home for approximately an hour his wife sent him to the store for the purpose of buying some food. He carried his shotgun with him in order to protect himself against the deceased. When he got near the store Elijah Calhoun asked him to lend him fifteen cents. His reply to Calhoun was that if deceased would pay him the twenty cents he owned him he would let him have ten cents. Hearing this remark, deceased called appellant a G__ d___ liar, saying that he owned him nothing. Appellant replied that deceased was a G__ d___ liar, and that he owed him twenty cents on the domino game. Further, appellant testified that at this juncture deceased procured a brick and he (appellant) started running back toward his home; that he ran about forty yards until he reached the point where he had left his shotgun; that deceased was gaining on him; that he "grabbed up the gun" and shot deceased, believing at the time that deceased was going to attack him with the brick. Appellant denied that he pursued deceased around the store and shot him a second time.

In rebuttal the State introduced the proprietor of the store, who testified that he had closed his store before the domino game between appellant and deceased had been concluded and had not reopened until the next morning. His testimony was evidently introduced for the purpose of rebutting appellant's testimony to the effect that his wife had sent him to the store to purchase food.

We are unable to agree with appellant's contention that the evidence is not sufficient to support a conviction for murder with malice.

No bills of exception are brought forward, and no exceptions were leveled at the charge of the court.

The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than ten years.

As reformed, the judgment is affirmed.

The foregoing opinion of 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.