Tipton v. State

• Decision Date: 06 June 1934
• Docket Number: No. 16757.,16757.
• Parties: TIPTON v. STATE.
• Court: Texas Court of Criminal Appeals

72 S.W.2d 290

TIPTON v. STATE.

No. 16757.

Court of Criminal Appeals of Texas.

June 6, 1934.

Commissioners' Decision.

Appeal from District Court, Comanche County; R. B. Cross, Judge.

R. C. Tipton was convicted of murder, and he appeals.

Affirmed.

Fred O. Jaye, of De Leon, and Oscar Callaway, of Comanche, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for life.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed P. H. (Pink) Milton by shooting him with a gun.

State's witness Gragor Wiesendanger testified, in substance, as follows: He and Ab. White went to deceased's home in the town of Comanche on the night of January 20, 1933, for the purpose of buying some whisky. Deceased came out to their automobile and handed the witness a half gallon of whisky. White handed deceased a $10 bill. As deceased was preparing to change the bill, a man jumped out from behind the car, presented a pistol, and ordered the parties to put their hands up. Immediately thereafter this man fired two shots and deceased fell. Holding the gun on the witness and White, their assailant bent over deceased for a moment, and, then ordering the parties to keep their hands up, ran away from the scene of the killing.

State's witness Clay Frost lived 360 feet north of the home of deceased. At the time deceased was killed, the witness was standing in his yard. According to his version, three minutes after hearing a gunshot a man passed within 15 feet of the witness running at a rapid gait. There was a light on the street. This man was just coming out of the light when the witness saw him. He was coming from the direction of deceased's home. At this juncture, we quote from the testimony of the witness as follows:

"Well, this party that I saw running there, was a man weighing, I judge, about one hundred and fifty pounds—he didn't stop for me to weigh him—just about a hundred and fifty pounds, I think, and he was just a little bit stooped. The best I could tell he had on dark clothes. I judge he was about my height, something like that, about five and eight and a half, something like that, approximately. In my best judgment this defendant —he has the appearance of the party there that I saw on that occasion. In my best judgment the party I saw looked like that man (the defendant), just his general appearance as he went over the fence. * * * I say that that defendant there resembles the character of man that come through my yard. I did not say he was humpbacked. I said that he stooped a little bit. He was a man that looked a whole lot like that man there (the defendant). It looks a lot like him, the appearance of the man. When I came back up here I saw this boy today. That is the first time I have seen him, unless I saw him the first time as I think in the yard, but this would be the second time (in that case). The first time I have seen him since I came back here is today. Well, I think this is the man I saw there. I can't swear that it was him. It looked like him. That is the only time I ever saw him, if I saw him then, and today, today and the night of the murder. Of course, there was a little light that night I saw the man running, a street light. It has been about ten months ago, I suppose. You could count it up."

An examination of the body of deceased disclosed a $10 bill near his left side. It appears that he had nothing else on his person except a pocketknife and a few pennies. A bullet had entered the edge of his breastbone and gone through the body and out of the back about the shoulder blade. There were powder burns on the face and hands. According to the testimony of a sister of deceased, he was accustomed to carry his money in his shirt pocket on the left side. Shortly prior to the homicide, she had given deceased $215 that she had been keeping for him. She did not know whether he was carrying the money at the time he was killed. There was testimony to the effect that deceased had a shotgun in his automobile prior to the homicide, and that after the homicide the window of the automobile was discovered to be broken and the shotgun gone. A shotgun was found nearby in a ditch. The automobile was in an open garage at deceased's home. There were tracks leading from the point where deceased was killed to the front of Clay Frost's house. Appellant was in the town of Comanche on the day deceased was killed.

State's witness Mrs. Lennie Cropper testified that she lived in the town of Hamilton on the 20th of January, 1933; that on that date appellant was at her house; that appellant left with one Monte Sims some time in the afternoon on the date mentioned; that about midnight of January 20th she again saw appellant, his wife, and Monte Sims at her house. At this juncture, we quote from the testimony of the witness as follows:

"Well, when R. C. Tipton (appellant) come in and sat down he said he had killed a fellow at Comanche. He said he had killed a fellow at Comanche. And I said, `Oh, no, you haven't,' and he said, `Yes, I had to.' Will I have to go ahead and tell the rest? Q. Well, let's see, didn't he tell you about getting the gun out of the car? A. He hid it behind a bush. He said something about the glass of the car, that he taken his hands and wiped the finger prints off. He said he broke the glass to get in the car to get the gun. Then he said he walked up to the front of the house and told them to stick up their hands, told that man to stick his hands up, and he went up with one hand, and was trying to draw his gun with the other one, and he told him, he said, `Don't do that, don't do it,' and that the other fellow didn't pay any attention to him but shot at him, and he said he had to kill him or get killed. Well, then, when he shot him he knocked the gun out of his hand over in the ditch and he went over and picked it up, and come back and then got his money, got the money off of the fellow, and then run across the yard, and some old fellow he thought was going to shoot him, and he got behind some bushes, thought this other old fellow was going to shoot him, and saw that he wasn't going to shoot him, and he went on to the car.

"Well, he said, that they rode around and got lost, and finally come back through here and come on back to my house. He said while lost or on the way to Hamilton that he threw that man's gun away, and that she threw his cap away. There was also something said about some shoes, that he hid the shoes under some bridge. That is...