200 S.W. 381 | Tex. Crim. App. | 1918
Appellant’s conviction was for the murder of Burton Wiggins, his punishment being assessed at confinement in the state penitentiary for a term of 99 years.
The killing of deceased by appellant was not controverted, but he sought to justify on the ground of self-defense. The homicide took place at the residence of E. Wiggins, the father of the deceased. The son, Burton Wiggins, and his wife also resided there. All of the parties were negroes. Appellant and some others who were witnesses went to the home of E. Wigggins for the purpose of gambling. The deceased was not one of the party, but was at work at some place in the city, and returned to his home about dinner time. Appellant had been cursing in the house and in the hearing of the wife of deceased, who was in another room. Deceased, learning of the cursing, remonstrated with appellant, and was shot and killed by him: The version of E. Wiggins, father of deceased, and some of the other state’s witnesses, is that the deceased came into the room in which appellant and others were and said, “Men, don’t be cursing in there; my wife is in the kitchen,” to which appellant replied, “God damn you and your wife, too, you black son of a bitch,” deceased replying, “You don’t mean to call me a son of a bitch because I asked you not to curse before my wife.” Appellant said, “Yes; I do,” drew an automatic pistol from his pocket and fired one shot, striking deceased in the breast near the nipple, inflicting a wound from which he died in a very few moments. This witness, E. Wiggins, claimed that the parties were about five feet apart, the deceased standing with his back to the dresser with both hands in his pocket; that he did not take them out until after he was shot. He said that about the time the shot was fired appellant said, “Get away from that dresser.” He also claimed that he (witness) ran, and appellant chased him with his pistol. He claimed:
That the deceased did not speak in an angry manner, did not make any move to get anything, and did not make any move until he fell down. “From the way he acted he did not know that Joe Steel was going to shoot him; nobody wouldn’t have knowed it at the time; they wouldn’t have thought it.”
The wife of deceased gave substantially the same testimony as her father-in-law. The state’s witness Holmes testified that in a conversation between appellant and others before deceased came appellant remarked that he bet he would kill somebody before the year was out. We quote from his testimony as follows:
“Burton [deceased] came in — well, Joe was still cursing, and Burton came in there and said to Joe, ‘You’ve got to cut that cursing out and respect my wife and daddy,’ and Joe Steel called him a son of a bitch, and when deceased started in the room his father said, ‘You go on back; I will attend to everything myself,’ and he wouldn’t go back, and he came back with both hands in his pocket, just leaning up against the dresser, and he said to Joe, ‘You don’t mean to curse me for a son of a bitch because I asked you not to curse before my wife,’ and Joe shot him, and he turned clean around and fell on his face. Deceased had come to dinner and had walked in there. At the time he was shot he had both hands in his pocket. He walked up to the dresser and backed to the dresser, with both hands in his pocket, and said, ‘You don’t mean to call me a son of a bitch,’ and Joe shot him.”
Whether there was a pistol on the premises or in a bureau drawer was a disputed issue; E. Wiggins and deceased’s wife testifying that there was none. There was testimony that E. Wiggins made some effort to prevent his son, deceased, from going in the room, and that he (E. Wiggins) had made some contradictory statements. Some of the eyewitnesses for the defendant claimed that the father of the deceased remonstrated with appellant for cursing, and that appellant said he would not do so again; that when deceased came in he walked up to the dresser and pulled one hand out of his pocket and backed up to the dresser; that he did not know whether he was trying to get in the drawer or not. He claimed that when deceased came in he said:
“Let me in there; I will stop that cursing; I will kill him; let me get to that drawer; I will stop him; I will kill him.”
Appellant told him twice to get away from the drawer and stay out of it. Another witness for the defendant gave substantially the same testimony as to deceased coming in the room and saying he would kill him, and said that deceased commenced pulling on the
“He goes out of the front door and Joe Steel behind him, and comes around from the back and takes a six-shooter off of this boy, out of the drawer, and comes on the front porch.”
The presence of this witness at the time of the homicide was controverted.
Appellant testified that when he was cursing in the house deceased’s father told him to stop on account of his son’s wife being in the house, and that he (appellant) apologized. E. Wiggins, deceased’s father, was called “Big Smokey” or “Smokey,” and deceased was called “Little Smokey.” We quote from appellant as follows:
“Big Smokey said, ‘Joe has started cursing, and I am going to break up the game,’ and this boy heads in the middle door, and Smokey said, ‘You go back; I will run the house,’ and he said, ‘No; I ain’t going to have nobody cursing over my wife,’ and he and his daddy tussled in the door a half a minute, and during the tussle some one knocked on the front door, and it was two women, and when he leaves this door he goes to the dresser drawer, and he said, ‘If I get to this dresser drawer, I will stop him; I will kill him,’ and after he goes to the door, and there stands Smokey there and Little Smokey over here at the dresser drawer, and here stood Babe Holmes. I knew Babe Holmes and Smokey were good friends, and Babe didn’t like me, and that is why I shot. I didn’t know whether I hit him; I didn’t care whether I hit him; I just wanted to keep him out of the dresser drawer. He made an attempt three times to get in the dresser drawer, and stood there a minute or three minutes after I shot. I could have shot him six times, but I didn’t make any attempt to shoot him any more; that is how the trouble was. He said, ‘If I get to that dresser drawer, I will stop the son of a bitch or kill him,’ and when he got to the dresser drawer he said, ‘Joe Steel you don’t mean to run over me and my family,’ and I said, ‘I am not running over your family; I did curse, and I told your daddy I wouldn’t do it any more,’ and some one said, ‘You know you wouldn’t let anybody curse over your family like this,’ and I said, ‘No; because I ain’t going to have no such a bunch as this around my family.’ When he walked up to this dresser he started to open the drawer, and I looked him so straight in the eye until he kinder checked up, and he asked me' did I mean to run over him and his family. He was trying to get in the drawer, and he had-it just about that far open; and I knew this Burton negro, I knew he would hurt a fellow, and that is why I wouldn’t take any chances. As to whether I thought there was a gun in that drawer: I knew there was one. I mighty near knew there was one in there. I shot because I thought he was going to get a gun to shoot me; that is what he said he was going to get; he said he was going to kill me, and that is all he could get out of there was a gun. I did not try to shoot Big Smokey after that. There were three men in the house that I was afraid would try to hurt me.”
There was an order of the court substituting the indictment in the case. Article 482, C. C. P., authorizes the substitution of the indictment, and provides the procedure therefor. We are unable to discern any departure from this procedure or failure to observe its provisions, pointed out in the bill of exceptions or existing in the record. See Vernon’s C. C. P. p. 249, and cases listed.
“I want to give you a fair show; we can prove where he, Mex [Smith], was. I want you to swear positively whether or not Mex was there.”
Objection was made that this manner of cross-examination was in the nature of browbeating or bluffing a witness, to which the prosecuting attorney answered that he was not bluffing, but meant to have Brown indicted if he swore that Smith was present. The court told the jury not to pay any attention to the remarks of the attorneys. The witness did swear that Smith was present as shown by the bill, and did not in response to the remarks of the district attorney change or modify his statements so far as the bill shows. The proceeding was not such as ought to have occurred. 40 Cyc. 2517. As disclosed in the bill, however, it does not appear to have been harmful, and consequently not reversible. Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Siars v. State, 63 Tex. Cr. R. 567, 140 S. W. 777; and cases cited in Vernon’s C. C. P. p. 710.
We have carefully reviewed the record, and finding the evidence supporting the state’s theory, if believed to be true, sufficient to support the verdict, and no reversible error being committed in the trial, the judgment of the lower court is affirmed.
iteoFor other cases see same topic and KE.Y-NUMBER. in all Key-Numbered Digests and Indexes
<®n»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes