Bass v. State

• Decision Date: 23 March 1910
• Citation: 127 S.W. 1020
• Parties: BASS v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 1020

BASS v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1910.

Rehearing Denied May 4, 1910.

Appeal from District Court, Jones County; Cullen C. Higgins, Judge.

Wiley Bass was convicted of murder in the second degree, and he appeals. Affirmed.

Davenport & Davenport, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

On the 7th day of July, 1909, an indictment was returned into the district court of Jones county charging Anthony Bradford, Bill Milo, and Wiley Bass with the murder of one Antonio Charvis by shooting him with a gun; said murder being alleged to have been committed on the 21st day of February preceding. Thereafter appellant made application for a severance, and, same being granted, he was put to trial alone, and was on the 22d day of July of the same year by the jury found guilty of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a period of 75 years.

There are a number of questions raised on the appeal, all of which are well briefed, and most of which will be considered in this opinion. In general, it may be stated the case was well tried, and, as we have concluded after a careful examination of the record, there is no error for which the judgment should be reversed. The facts show that at the time of the killing a number of Mexicans were living near the village of Lueders in Jones county, occupying tents; that among these Mexicans were H. H. Garcia, and his wife, Marcella Garcia, and that deceased, with other Mexicans, was in the tent at the time of the killing. All three of the indicted parties, as well as Joe Sexton, who will be hereafter referred to, were negroes. The evidence shows that about the day of the killing Anthony Bradford and Milo had bought from Robert Greek, who lived in the neighborhood, a gun and a pistol. The record indicates that at some time these Mexicans, and some or all of the negroes, had been gambling. It was the contention of appellant as well as Milo and Bradford, that the Mexican Garcia in playing cards with Bradford and Milo had taken from them money staked on the game which he had not won, and was unlawfully and unjustly detaining their money from them. This was denied by Garcia and his wife. It was the theory of the state that, having ascertained that Garcia had some money, the parties had deliberately conspired to rob him, and that in this conspiracy Milo and Bradford were the moving spirits. It was also the contention of the state that, if in fact Garcia had detained any money to which he was not entitled, the parties had conspired together to retake the money, and, in the event of his refusal on peaceable demand to deliver it, to kill him if necessary to obtain possession of same. The record is quite voluminous, and it will be impossible to set out the testimony in full. It will be sufficient to make a general statement of the matters at issue.

Garcia testified: That Joe Sexton and appellant came to his tent on the day of the homicide near the middle of the afternoon, and wanted him to play cards with them, which he declined to do. That later on in the afternoon, about sundown, they came again, and said that they wanted to get supper. That his wife fixed supper for them, and, after they had had their supper, they asked, appellant doing the talking, if they had any change. That he mentioned the matter to his wife, and that she laughed, and said that she had change for as much money as he had, and went over to a little valise and opened it, and showed him her money, and that he said, "Mamma, you have got plenty of money." He says that Bass threw down a half dollar to pay for the supper, and that no change was needed. He also states: That his wife had some $80 or $90. That almost immediately appellant got up and went out. That then his wife went out of the tent to turn loose a mare, and she had been gone but a few minutes when Milo and Bradford came to the door of the tent. That Bradford had a six-shooter and Milo a shotgun, and, when they came to the door, they said, "Give me all the money, you sons of bitches." That deceased tried to get out, and they shot him. That at the time they came to the door he was lying on the bed. He says shots were fired three times. He got hold of Bradford, and they had quite an encounter; Bradford finally getting loose, when he got his gun and pursued him, shooting once or twice. It seems that deceased, Charvis, was shot in the right arm with a gun, and through the breast with a pistol, and died immediately. It was the theory of the state, and to some extent it is directly shown by the testimony of Sexton, that the arrangement and agreement was that appellant should go to the tent and ascertain whether the Mexicans were armed, and, if he discovered that they were not armed, he was to come out in the open where he could be seen, and then Milo and Bradford were to go in the tent and get the money. Sexton testified that the parties endeavored to induce him to perform this service, which, however, he declined to do. He also testifies that they were to pay appellant for doing this. He does not say, however, there was any agreement between the parties that, if Garcia declined to pay over the money, they would kill him, or just what they would do. Appellant, in his testimony, says that there was no conspiracy to kill the Mexicans or any of them; that, on the contrary, they all believed that if Garcia was sober he would on request surrender the money claimed to have been unlawfully detained, and that he was to go in the tent, and, if he was sober, come out so they could know this fact. He distinctly denies any conspiracy to kill the Mexicans or harm them, and says over and over that if there was such conspiracy that he did not know it, and was not a party to it. In this case neither Bradford nor Milo testified. Sexton, who was in the tent, left before any shot was fired. There is no issue of self-defense raised in the case, nor were there any facts shown reducing the killing, if unlawful, to the grade of homicide.

1. There is a bill of exception in the record touching the action of the court in respect to the competency of the jurors Johnson, McCaleb, and Griffin. Even if it could be held that the court was in error in holding these jurors qualified, such error could not avail appellant for the reason that it does not appear by this bill or elsewhere in the record that at the time appellant had exhausted his peremptory challenges, and that any objectionable juror was forced upon him. On the contrary, it is a fair inference from the bill that these jurors were challenged by appellant. Besides, we think that the action of the court was not erroneous. Some of these jurors stated they had a prejudice against the negro race socially, but not civilly or legally. We understand this to mean merely as companions they are not desirable, and that as associates would not be recognized, but that they had no prejudice against the race that would influence or affect their action in respect to any right or rights under the law.

2. There are a number of exceptions in the record with reference to the testimony of Marcella Garcia. She testified, as will be remembered, that she went outside of the tent about the time that appellant left, and, after she left the tent, she was asked if she heard anything out there, to which she replied that she heard a murmur, but did not know what it was. She was further pressed to say, "What was it a murmur of?" to which she replied that she believed it was some one talking, but could not swear to it. Her whole statement is that: "After the defendant and Joe Sexton had eaten supper in my tent on the night of the killing, they sat in the tent a while. Then the defendant went out of the tent, and in about one minute I went out to untie a horse that was tied in about 20 feet of the tent. I saw the defendant going off down a hollow, or draw, about 100 yards from the tent. When I got out of the tent, I heard a murmur out there; didn't know where it was. I believe it was somebody talking, but would not swear to it." This testimony was objected to for the reason that it threw no light on the transaction; that it is immaterial for the reason that it threw no light on the killing, and does not in any way connect the defendant with the noise witness heard; that it was prejudicial to the rights of appellant, because it is attempted by the prosecution to connect the defendant with this murmuring by evidence that should not have been admitted, would likely prejudice the jury against appellant, and was not relevant or material to any issue in the case. These bills were allowed by the court with the following explanation: "The evidence of Joe Sexton, the accomplice in the case, connects the defendant with the conspiracy and transaction, and this evidence was only admitted to show that the defendant came into the Mexican's camp to see how much money they had, and to give signal to his companions, Bill Milo and Anthony Bradford, when the way was clear in the tent to make the attack and immediately after murmuring sounds of human voices from the ravine in the direction Wiley Bass had gone, Milo and Bradford appeared in the door of the tent, but Bass did not come into the light at the tent door, or was not seen there at least by the Mexicans; therefore, after the accomplice testified in the case and was corroborated at other places by the evidence, I could not see that defendant was injured by this evidence." We think this testimony was admissible in view of the other testimony that Milo and Bradford were a short distance outside of the tent; that, almost immediately after the sound of these voices were heard, they appeared in the tent, and their actions and appearance were in harmony with the agreement theretofore testified to, and, under the circumstances, the jury could well believe, from the fact that talking...