Bearden v. State

• Decision Date: 18 March 1903
• Citation: 73 S.W. 17
• Parties: BEARDEN v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 17

BEARDEN v. STATE.

Court of Criminal Appeals of Texas.

March 18, 1903.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

J. S. Bearden was convicted of murder, and appeals. Affirmed.

J. T. Ranspot, Gibbs & Gibbs, and Stevenson & Ritchie, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

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

Appellant sought a continuance for want of the testimony of J. T. Ranspot, alleging: That he was one of the attorneys in the case, and under contract to be present at the trial, and, relying on which contract, defendant did not cause process to be issued for him. "That defendant is informed and believes that said witness is now at home, sick with the mumps, and not physically able to attend the court. Defendant expects to prove by said witness that one of the defenses in this case will be that deceased was advancing on him at the time of the fatal shots, coming through a barbed wire fence and throwing rocks at defendant at the time the fatal shots were fired. That said witness Ranspot will testify that two or three days after the homicide he (witness) viewed the ground where the same occurred, saw a rock about four pounds in weight lying on the edge of a pool of blood where deceased is charged to have fallen at the first shot; that he saw said rock placed in a cavity exactly fitting in the ground, about 20 feet from the pool of blood, and the direction from which deceased is alleged to have been advancing at the time of the shooting. Witness will also testify that he found a bit of red cloth corresponding to the handkerchief around deceased's neck, which was clinging to the fence where defendant claims deceased came through in advancing on him. That said witness will also testify that he saw said rock in the pool of blood, which he afterwards saw fitted in said cavity, in the ground, on the day of the homicide on the occasion of the inquest." The substance of the testimony discloses that appellant killed his brother about 10 o'clock, and that after killing him he hitched up his wagon and hauled posts to a certain place on the farm, where the fences needed repairing, and also went to the village of Santo, about two miles from the scene of the killing, and hauled a load of posts to the farm, passing in each instance near the prostrate body of his brother; that about 2 or 3 o'clock in the evening, after finishing the work detailed, he took out one of the horses, went to Santo, and surrendered, stating to the parties that he killed deceased in self-defense. This statement he subsequently repeated at the inquest trial, and testified on this trial that deceased was advancing upon him and throwing and hitting him with rocks at the time he fired the fatal shots. Two witnesses testify that they saw the absent witness, Ranspot, pick up the piece of handkerchief, not on the fence, but near the fence. The defense established by two witnesses—one of the attorneys and a physician living at Santo—that they saw the rock described by the absent witness, and that said rock fitted into a hole in the ground about 20 feet from where it was found. The facts testified to by said witnesses were not controverted by the state, but, on the contrary, all the witnesses who mentioned the matter state that the rock was there, so it is not a material matter in this case. If it is material, the same is not controverted. Hence it was not error for the court to refuse to continue this case for want of the testimony of said Ranspot, even conceding diligence.

Bill No. 2 complains that the state offered Reuben Bearden as an expert witness, who testified on direct and cross examination as to his qualifications as an expert in the use of shotguns as follows: "I am fifty-one years old, and an uncle of defendant. I helped wash and dress the body of deceased, Lovey Bearden, on the day he was killed. I examined his body for wounds. I found scattering shot marks on his left hand, and also on his face, and one or two shot marks in his left eye. The shot marks on his face ranged from the temple down to the chin. Those in his hand ranged from the wrist out, and numbered 8 or 10. I found, also, a shot hole in the head, just above and behind the left ear, about as big as the end of a man's three fingers. Can't say whether the hole had smooth or rough edges, or from what direction the shot which made this hole came. The hair around this hole appeared to be singed, and his face was covered with blood. I have had experience in the use of a shotgun. I have owned shotguns, and my father had one. Have loaded and fired shotguns a great deal. The deceased, Lovey Bearden, was killed with a double-barreled muzzle loader, which was loaded with squirrel shot. It has been 12 years since I used a muzzle loader. My father had a gun which I used some prior to the year 1870. I bought a muzzle loader myself in 1879, and kept it for five years, and sold it and bought a breech loader. Have had a good deal of experience in the use of a shotgun, but never made hunting a business. Before coming to Palo Pinto county I lived in Young county. While I lived up there I was a farmer and stone worker. I hunted at odd times. I never practiced at targets with squirrel shot. Never shot anything but squirrels with them. I have often shot at trees with shotguns, in order to get the range of the gun, and at different distances. Have never shot at trees 5, 10, 15, or 20 paces. I have owned two shotguns myself. Have hunted with borrowed guns some. Have never practiced at targets, boards, or anything of the kind, to see how shot would scatter." Appellant objected to said testimony on the ground that witness had not shown himself to be an expert in the use of muzzle-loading shotguns, which was overruled by the court. Thereupon witness testified as follows: "From what I know about shotguns, and the way shotguns scatter, I would say that the shot which struck deceased in the face was fired from a distance of about 20 steps. And from the size of the hole in the side of his head, I would say that the shot which made that hole was fired from a distance of about ten inches. At a distance of eighty yards a charge of shot from an ordinary shotgun will scatter over a surface of about two feet; and at a distance of 25 or 30 yards, some 8, 10, or 12 inches." The court did not err in holding witness had qualified himself in the use of firearms, nor was any error committed in admitting said testimony. Head v. State (Tex. Cr. App.) 50 S. W. 352; Morton v. State (Tex. Cr. App.) 71 S. W. 281.

Bill No. 3 complains that the court erred in permitting the state's attorney to ask appellant, while on the stand, if he had been formerly indicted in Palo Pinto county for theft of cattle, to which witness replied in the affirmative. Appellant objects because immaterial irrelevant, improper, and calculated to prejudice the jury against defendant, and further because, defendant being on trial for murder, his character for peace or violence only was in issue, and not for theft, and the trait of character involved in said prosecution for theft will throw no light upon this case or upon defendant's credibility as a witness. We have repeatedly held that when defendant takes the stand he is subject to the same rules on...