Beggs v. State

• Decision Date: 12 April 1933
• Docket Number: No. 15802.,15802.
• Citation: 60 S.W.2d 241
• Parties: BEGGS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 241

60 S.W.2d 241

BEGGS v. STATE.

No. 15802.

Court of Criminal Appeals of Texas.

April 12, 1933.

Rehearing Denied May 24, 1933.

Appeal from District Court, Jack County; J. E. Carter, Judge.

W. A. Beggs was convicted for murder, and he appeals.

Affirmed.

Nolan Queen, of Weatherford, and W. E. Myres, of Fort Worth, for appellant.

John P. Simpson and John D. McComb, both of Jacksboro, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for murder; punishment, fifteen years in the penitentiary.

The background and surroundings of this case are unusual. Deceased and his slayer were neighbors, living on the same road some two miles apart. According to the testimony of appellant and his family, the two men were friends, with no ill-feeling between them. The state's testimony suggests a different situation.

The oldest son of appellant lived about a quarter of a mile from appellant, and on the same road referred to. The killing took place at the home of said son Theodore Beggs, on the night of December 19, 1931. Theo and deceased, Ham, were both in Jacksboro that day. Theo testified that he saw Ham in town, and saw him about sundown help push Carney's car out of a ditch. Carney lived about a half mile north of Theo and on the same road which ran south past appellant's house. About 7:30 p. m., two hours after Theo sam Ham helping Carney, Ham was shot at Theo's house. The state showed that a few weeks before the killing Theo was found by Ham at a still in a pasture controlled by Ham, who evidently objected to the presence of the still and ordered Theo to "take that mess out of here," which Theo agreed to do. The state also showed by another witness that about said time appellant left his house and came down to his gate one moonlight night, when a man passed riding a paint horse such as Ham rode, appellant saying to the man "I thought you were George Ham." Accounting for his presence with a rifle at Theo's house on the night of the killing, appellant and his family said they heard from their house a holloing—which they thought came from Theo's house, and that appellant put his clothes on, took his gun, and went up there. The state put on the stand four of Theo's nearest neighbors, each of whom was at home at the time, and all said they heard no holloing. The body of Ham lay in Theo's house an hour or more before the officers got there after the killing. The officers found a pint bottle in Ham's front trouser pocket, partly filled with whisky. Theo's wife testified that she heard Ham tell her husband in a conversation out in the road shortly before the killing that he was drinking. The sheriff who came to the Beggs' home at once after notification of the killing, the undertaker who handled the body, and a number of disinterested witnesses who saw and talked with Ham in Jacksboro that afternoon, including Mrs. Carney, at whose home Ham was that night until a few moments before he was killed, all testified that they saw no indication that Ham was drinking, saw no whisky, and smelled none on his breath or body.

Appellant testified that Ham was on the porch of Theo's house when shot, and that he fell there. Ham's hat was found on the ground northeast from said porch some ten or twelve feet distant from it. Appellant testified that he was in the house near a bed when he fired his rifle; that Ham was coming from the northeast; that the house faced east. Appellant said Ham came on the north side of the porch, and advanced to the south side of the door, and about the time or a little before he ran against the door facing he, appellant, fired. Other testimony showed that the bullet entered in front near the right shoulder of deceased and made its exit in the back near the left shoulder, apparently a physical impossibility if the shooting occurred as appellant said it did.

Appellant and Theo testified that soon after appellant got to Theo's house a man from the road called "Hello, Pedro" (that seeming to be Theo's nickname). Theo testified that he went out, stepped around the corner of the house, and called "Hello." The man in the road said "Come out here." Theo said he told the man he could not come out there, and the man said, "If you can not come out here, I can come in there," to which Theo replied, "No, you had better go on and not come in here," or something of that sort. Theo then went back in the house. Appellant testified that he heard this conversation between Theo and the man in the road, and when his son came back in the house he told him he had better go and see about his mother. He testified that he told Theo he would stay there with his family. He said Theo left. We quote what appellant then said "Right then I thought I heard a noise right at the northeast corner of the house. I opened the front door enough to look out and see if I could discover where that voice was out there; just at that time I heard some one jump upon the gallery, and that attracted my attention. When I looked around it looked like to me I saw the bulk of a man almost in my face. I said `Stop.' As I said that I jumped back, and it didn't stop, and of course I thought I was in danger; I was scared. I for a fact thought I was in danger of death or of serious bodily injury, or I would not have fired the gun. As far as I could see the man would have to be coming towards me from the northeast corner of the gallery to jump on it there and never check at all until he went against the south door facing. About the time he hit this door facing, or maybe a little before, I fired the gun. I didn't have time to get the gun up to my shoulder. I had it down in my right hand, when I opened the door, and I didn't have time to throw the gun to my shoulder. And I jumped back and told him to stop. He didn't stop, and I fired. I fired the gun from my side. It seems to me like the man had no more than fallen until Theodore appeared at the porch where I was."

Theo testified that when he got back in the house after his conversation with the man in the road, his father told him to go and see about his mother. We quote what he then said: "I started on and got about to the fence. On the northeast of the house I heard foot-steps on the porch and I wheeled around, and I saw the bulk of a man on the porch, and he went right on to the door, and then I heard the gun fire, and looked around and saw the flash of the gun. I was southeast from the corner of the house then; that is the trail I would have to follow in going to my mother, and I had started to her. I saw the blaze from the gun shot. The fire from the gun was right in the door, and the body I saw was right against the door, it looked like to me."

We find in appellant's testimony this also: "When I got my head out of the door I heard this noise of a man jumping on the porch and I jumped back and raised the gun between he and I; I raised the gun up like this about half way between my hip and shoulder. When I told him to stop I was excited, and he didn't stop and I fired. I didn't ask him who he was, because he was close on me then, and he didn't make any attempt to stop at all. It looked like he didn't try to stop at all; he had hit the south side of that door, and about that time I fired. I was about two feet back in the room standing right by the foot of the bed when I fired. I was a little west of the south facing of the door."

In another place appellant testified as follows: "This party approached the front door from the north end of the porch. The gate is northeast from the porch. Anyone coming in at the gate would approach the door from the north end of the porch. I had told the man to stop, and he had been told to go on, and it was in the dark with everything going on in the country, and I thought he was a drunken man or a crazy man from the noise he had been making; I believed there was something wrong with the man that had been making this noise, and I shot believing either my life was in danger or that I was in danger of his doing me serious bodily harm or injury."

Regarding what took place immediately before the shooting, appellant testified that he told the man to stop. It must be borne in mind that it was raining at the time and the night was dark. There was no light in the front room of the house where appellant was. Theo testified that he was a few steps from the porch at this time, and that he did not hear either appellant or the man who was shot say anything. Mrs. Theo was in the next room to that in which appellant was and testified that she did not hear the man say anything before the shooting. Both of these witnesses had made written statements on this point soon after the killing.

As we understand appellant, he asserts error in the refusal of his special charge No. 3, which was as follows: "You are further charged as a matter of law that if the defendant at the time he shot the deceased was on his own property and at the home of his son, and that the deceased came upon the defendant's property and into the home of the defendant's son over the...