Babin v. State

• Decision Date: 10 April 1946
• Docket Number: No. 23324.,23324.
• Citation: 194 S.W.2d 563
• Parties: BABIN v. STATE.
• Court: Texas Court of Criminal Appeals

194 S.W.2d 563

BABIN v. STATE.

No. 23324.

Court of Criminal Appeals of Texas.

April 10, 1946.

Rehearing Denied May 22, 1946.

Appeal from District Court, Liberty County; Clyde E. Smith, Judge.

Roy Babin was convicted of malicious killing, and he appeals.

Judgment affirmed.

W. J. Baldwin, of Beaumont, R. E. Biggs, of Liberty, and Henry E. Kahn and Spurgeon E. Bell, both of Houston, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the malicious killing of Earl Martin, and upon his conviction, was assessed a penalty of twenty-five years, and he appeals.

There is but slight difference between the appellant's and the state's testimony. It being shown that on the night of July 18, 1945, appellant borrowed a pistol from a friend, agreeing to return same by 11:00 o'clock that night; that he repaired to a gambling house, some few miles from the City of Liberty, arriving there soon after 10 o'clock, and began drinking and gambling; that he continued such conduct until about 4 o'clock in the morning of the 19th of July, at which time, he left the gambling hall and went out to his car, parked nearby, and possessing himself of this borrowed pistol, he returned to the hall, and presenting the pistol, demanded of one J. D. Lee the return of some $600, supposedly won from appellant by Lee at a time and place different from this hall where the shooting soon thereafter took place. Appellant had been gambling at this particular hall some the night of the killing, but the trouble that culminated in the death of Earl Martin was caused by a prior game where, in another night of gambling, Lee had won about $400 from appellant, and about $230 from one Stegall. Appellant's contention being that he was cheated out of this money, and he produced his pistol, intending to bluff J. D. Lee and make him return same to him. Upon presentation of this pistol on the night of the killing, Mr. Martin, who was running this place, interceded, and came between Lee and appellant and tried to persuade him to put up the pistol, finally agreeing to give appellant a check for this money lost in the prior game, which was played in the City Hall and not in this gambling house, but appellant refused to take Martin's check in payment of his claim against Lee.

He asked Lee for his money and when Lee denied owing him anything, he said "I am not playing with you, I am going to kill you." Martin said: "Lay down that gun, Roy. I will write you a check for that amount. Let's don't have any trouble out here, I don't want any trouble out here." However, appellant refused to accept the check, demanding money. Appellant then said: "If anybody goes out that door, I am going to shoot them, and I am a good shot." When Martin was shot, he was holding up his hands and asking appellant to put down the gun, according to the State's witnesses, and no one had hold of appellant when he fired the fatal shot. A State's witness testified:

"When the gun was fired, it was in Roy's hand, pointed towards Earl Martin. I say he shot Earl Martin with this gun and that he pointed it at him and shot him. He hit him in the head there (witness points to his own head) and went up through the top of his head. He pointed it straight at Earl Martin then and he took deliberate aim at Earl Martin. The gun was right on Earl Martin. It was not right up against his cheek. He was back off a good piece from him. I don't know how far but I would say three feet, anyway. He was trying to get Earl Martin out of the way and had the gun on Earl Martin all the time. He had the gun pointing right in Earl's face, right on Earl, when he shot him. I don't know whether it was on his face, or not, but it was right on Earl Martin.

"He said, `I am going to shoot you if you don't get out of my way.' He did have the gun right on Earl Martin and pointed it right at him and told him if he didn't get out of the way, he was going to kill him. He did kill him."

A further witness testified: "He (appellant) told Mr. Martin that `If you don't get out of the way, Martin, I am going to shoot you.' I think he repeated that several times, trying to get Martin away from him. He told Martin he didn't want to hurt him, to get out of the way. Martin was trying to keep down trouble, and thought he would argue the boy out of it * * * at the time immediately preceding and before Mr. Martin was shot, when Martin was pleading with the defendant not to shoot Lee, the defendant kept telling Martin to get out of the way, saying: `If you don't get out of the way, Martin, I am going to shoot you.'"

All of the State's witnesses who saw the shooting, show Martin as standing before appellant asking him not to shoot, and no one touching appellant at such time.

Appellant's testimony shows that sometime prior to this killing he had engaged in an all night gambling game with one J. D. Lee and others and he had lost $400 therein. That he had decided that Lee had cheated him in the game and he decided to make Lee refund that money. That he was drinking, and after borrowing a pistol, at about ten o'clock on the night of the tragedy he appeared at this gambling house and continued to drink. About four o'clock in the morning he decided to pull a bluff on J. D. Lee and make him give him the money back that was lost in the previous game. He pulled his gun and demanded of Lee his money, and Mr. Martin told him that they did not want any trouble in there, and refused to let appellant and Lee go outside and settle this matter. While appellant was holding this gun in his hand someone rushed him, and one of them grabbed his hand and he lost his watch. Then he did not know what happened. The gun fired, and he could not tell what happened. He did not point the pistol at anybody and did not intend to shoot anybody, neither Lee nor anyone else. He considered Mr. Martin his friend, and was affected mentally and physically because of his death. He was drunk, so drunk he couldn't remember, he did not know whether he shot Martin or not, he was not pointing his gun at anyone, he was holding the gun up, for the purpose of making Lee pay him that money. He was putting on a bluff, and thought he was shooting the gun up in the air to run a bluff. He didn't see Mr. Martin when he pulled the trigger, as they were all standing right around him.

Bill of Exceptions No. 1 complains because the trial court refused to allow appellant to prove by J. D. Lee a certain transaction with one Paul Blanchette wherein, in a gambling game between Lee and Blanchette at some time prior to this killing herein inquired about, Blanchette lost some One Thousand Dollars, and afterwards came to Lee and producing a pistol demanded the return of such money, and Lee "refunded this money on the grounds that he had been cheated out of that money." This offered testimony was objected to by the State, and not allowed by the Judge trying the case. We cannot see the materiality of such testimony; it doubtless might have shown the temerity of Mr. Lee, and the probability of his returning some money at the point of a pistol, but we think such a characteristic upon his part, could not operate as an excuse, or an extenuation of guilt upon the part of appellant. True it is, appellant testified that he intended to bluff Lee, but the fact that Lee had previously been bluffed by another, does not seem to us to make plausible the fact that he would again succumb to a further bluff.

This above holding should also dispose of Bill No. 2, which relates to the refusal of the trial court to allow appellant to detail a conversation had with Paul Blanchette, wherein Blanchette outlined the procedure relative to Blanchette's recovery of $1000 won from him by J. D. Lee. This was undoubtedly hearsay and was properly excluded by the court.

Bill No. 3 relates to acts upon the part of Mrs. Earl Martin, the wife of the deceased, wherein it was sought to show that in making out a life insurance claim regarding the death of her husband, wherein there was a double indemnity provided for in the event of an accidental death, she stated that the death of Earl Martin was accidental. We think the statement itself evidences its objectionable character.

Bill of Exception No. 5 relates to alleged misconduct of the jury in that it is claimed that Wade B. Colbert, foreman of the jury, on his voir dire examination, withheld information from appellant's...