Bearden v. State

• Decision Date: 09 March 1904
• Parties: BEARDEN v. STATE.
• Court: Texas Court of Criminal Appeals

79 S.W. 37

BEARDEN v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1904.

Appeal from District Court, Bell County; John M. Furman, Judge.

J. R. Bearden was convicted of murder in the second degree, and appeals. Reversed.

J. B. McMahon, Nelson & Little, and A. W. Gibson, for appellant. Jno. D. Robinson and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 13 years.

It appears from the evidence that deceased and appellant were both renters on the same farm; that the fence around a certain pasture rented by deceased was out of repair, and some of appellant's stock got into the pasture. Deceased made complaint to the wife of appellant in regard to this, and subsequently came to fix said pasture fence. Appellant offered to assist him, but deceased declined his assistance, and as appellant started to leave drew his gun on him, and cursed and abused him. Appellant threatened him with a prosecution for this mistreatment, and subsequently started off to make complaint against deceased. There is some testimony tending to show that as he passed out by deceased the latter told him if he would not prosecute him he would take back "the son of a bitch." However, appellant went on, and made the complaint. Several days after this the parties casually met in the little town of Rogers. As appellant came out of the saloon he met deceased in company with three others. According to the testimony of some of the witnesses, defendant said, "Howdy, chinaman." He denies this, stating he had a sort of stutter in his voice, and he said "Howdy, gentlemen." At this juncture appellant began a conversation with one Herston, talking about the weather, crops, etc. He then turned to deceased, Newcomb, and asked him "why in the hell he had cursed and abused him as he did the other day." Deceased said: "Go away, and let me alone. I thought that matter was settled. I don't want to have any trouble with you." Appellant again asked deceased why he had treated him so, and a few days before cursed him, and called him a son of a bitch. Deceased said, "Because you are a son of a bitch," but some of the witnesses did not hear his reply, though appellant, and perhaps one other witness, testified he replied, "Because you are a son of a bitch, and I will cut your damn throat," and he at once put his right hand in his pocket as if to get his knife or some other weapon. It appears that at this time the parties were on the gallery of the saloon, which was two or three feet above the ground. When deceased made this remark, appellant knocked or slapped him off the gallery with his hand or fist. Deceased caught on his feet and one hand. Several of the witnesses concur as to the demonstration of deceased on the gallery as if to get a knife out of his pocket just before he was knocked off the gallery. One state's witness testified that he saw him open the knife just as he recovered himself, after being knocked from the gallery; and the witnesses generally concur in stating that deceased immediately ran up the steps and onto the gallery with the knife open in his hand. Nearly all of the witnesses say he was going toward defendant, who was standing on the gallery; that in the meantime, as soon as deceased started up the steps with his knife, appellant drew his pistol, and that the pistol was discharged before deceased got up on the gallery—into the floor of the gallery. Appellant says that this was an accidental shot; that the pistol was a double-action. Appellant then fired the second shot, which struck deceased in the back. Appellant explains this by stating that he shot just as deceased turned from him. Deceased then ran into the saloon, and appellant pursued him in there, firing two or three shots. It is not in evidence that deceased had any other weapon than his pocketknife, and it is in evidence that appellant, when he started to town on that morning, came by his father-in-law's and secured his pistol. This is a sufficient statement of the case in order to discuss the bills of exception.

By appellant's first bill of exceptions it is made to appear that during the cross-examination of Mrs. Maggie Bearden, wife of appellant, by Matthews, one of the attorneys for the state, he read from the testimony of Will Joiner, taken at the examining trial of defendant. This was objected to on the ground that it was an indirect way of getting before the jury the examining trial evidence of Joiner. The state's counsel replied that he would offer the examining trial testimony in evidence. We fail to see how this conduct was calculated to prejudice the defendant. The testimony was not actually offered in evidence, and we are not informed of its character. It was further objected that, while defendant was being cross-examined, the attorney representing the state held the testimony of Joiner in his hand, apparently reading therefrom. Counsel objected to this because the testimony was irrelevant and immaterial, and that the testimony of Joiner was the best evidence, and the method pursued was an attempt to get before the jury the examining trial testimony of Joiner. And in this connection defendant's counsel stated he had tried to get Joiner here to testify. Mr. Matthews, in reply, stated that the examining trial evidence of Joiner was not ex parte; that he was cross-examined by the defendant's attorney; that the state had also tried to get Joiner; and then, holding up a telegram, said, "Here's an answer to a telegram we have just sent to Joiner, and he refuses to come;" and then said he was willing to put Joiner's examining trial testimony in evidence if defendant's attorneys would agree to the same, whereupon defendant's counsel replied they were not making any trade; that they wanted to try the case according to law; and then objected to the remarks of said attorney in the presence and hearing of the jury, because the same were wrong, and calculated to injure defendant; and the court overruled the objections of defendant, except that the court instructed the jury to disregard the remarks of Matthews, state's counsel. While it is true that the proposition of state's counsel to use the examining trial testimony of Joiner, and in displaying the telegram and stating its contents, was not authorized by law, yet we are not prepared to say that he was not provoked thereto by the course of appellant's counsel in stating that appellant had been trying to get Joiner before the court as a witness. However, state's counsel went farther than was warranted by the provocation. The court instructed the jury to disregard the remarks, and under the circumstances we are not disposed to treat this as reversible error.

While Mr. Puckett, one the attorneys for the state, was addressing the jury, he said: "Gentlemen of the jury, Mr. Nelson said I was a `scene lawyer.' Yes I am a scene lawyer. I was present, and witnessed the killing, and I would have testified in this case if I were not an attorney in the case; and, having witnessed the killing, I know the state's theory is true." This was objected to on the part of appellant on the ground that the same was outside the record, and was calculated to injure the rights of appellant. Thereupon the court orally instructed the jury to disregard said remarks, and also instructed the jury in a written charge to disregard the same. The bill also shows that Walter Nelson, one of counsel for defendant, in discussing the case to the jury, alluded to Puckett as a "scene lawyer." So here it appears that one of the attorneys for the state was...