Lamar v. State

Jun 17, 1931
No. 14196.
Reporters:
, ,
Before:
Hawkins, Morrow

with appellant. He emphatically said there was no question about that,—that it was his own personal observation and dealing with appellant, and that he could not say for sure whether he had ever heard anybody else say anything about it, and that he did not know whether he could name a single man he had ever heard say anything about it. In our opinion, in this condition of the record, the learned trial judge fell into error in not sustaining the motion to strike out the testimony of the witness. Brownlee v. State, 13 Texas App., 257; Trammell v. State, 10 Texas App., 467; Tyler v. State, 46 Texas Crim. Rep., 14. Further examination discloses that but three witnesses testified regarding appellant‘s reputation for peace and quietude, one of whom affirmed that his reputation was very good, and the third of whom said it was bad. The question of such reputation was very vital to appellant as supporting his application for suspended sentence. We can not tell but that the jury may have been hurtfully influenced against appellant and that their denial of a suspended sentence was based upon the testimony of witness Sullivan.

We have examined each of the other bills of exception, and are of opinion that same present no error.

For the error mentioned, the judgment will be reversed and the cause remanded.

Reversed and remanded.

The opinion states the case.

J. G. Minkert, of Bryan, for appellant.

Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.

HAWKINS, JUDGE.—Conviction is for murder, punishment being five years’ confinement in the penitentiary.

In order to secure his enlargement pending appeal appellant, after adjournment of the trial term of court, entered into an appeal bond which was approved by the sheriff only. Article 818, C. C. P., specifically requires such bonds to be approved by the sheriff and the court trying said cause. On account of the defect in the bond the appeal must be dismissed.

If appellant desires to further prosecute his appeal he may have fifteen days from this date to furnish an appeal bond in compliance with the statute and forward same to this court by supplemental transcript in connection with a motion to reinstate the appeal.

The appeal is dismissed.

Appeal dismissed.

ON MOTION TO REINSTATE APPEAL.

MORROW, PRESIDING JUDGE.—A perfected appeal bond having been filed, the appeal is reinstated.

There is presented for review no complaint of the ruling of the trial court save that with reference to the overruling of the motion for new trial.

The state‘s case is summarized as follows: The appellant shot and killed Lee Gaitor. He claimed that Gaitor had taken possession of certain articles of personal property belonging to him. This Gaitor denied. The appellant declared that he would kill Gaitor if the property was not returned. The state‘s evidence describing the homicide was such as to show an unprovoked killing.

The appellant, through his testimony and that of his witnesses, presented the issue of self-defense. The evidence, including the appellant‘s confession, presented an issue of fact; that is, whether the appellant acted upon malice or in defense of his life. Upon that issue the jury was fully, and apparently accurately, instructed in a charge against which there is no exception addressed. The jury was also instructed upon the law of suspended sentence but declined to recommend it.

In entering the judgment and sentence, the court failed to take note of the indeterminate sentence law as set forth in article 775, C. C. P. The judgment is reformed so as to provide that the appellant shall be confined in the state penitentiary for a period of not less than two nor more than five years. As so reformed, the judgment is affirmed.

Affirmed.