Board v. State

• Decision Date: 18 January 1933
• Docket Number: No. 15430.,15430.
• Citation: 56 S.W.2d 464
• Parties: BOARD v. STATE.
• Court: Texas Court of Criminal Appeals

56 S.W.2d 464

BOARD v. STATE.

No. 15430.

Court of Criminal Appeals of Texas.

January 18, 1933.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

Howard Board, alias Home Boy Board, was convicted of murder, and he appeals.

Reversed and remanded.

Tom McMurray and Arthur Lee Moore, both of Fort Worth, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

The offense, murder; the punishment, two years in the penitentiary.

The killing took place on a certain Sunday night at or near a negro church. A short time before the killing actually occurred, a difficulty had arisen between the appellant and a negro girl by the name of Cora Towles, who was a niece of the deceased, and because of said difficulty the said Cora Towles struck the defendant with a knife, inflicting some injuries to his hand and wrist. There was some evidence to show that in this difficulty between the appellant and Cora Towles the deceased and another negro man by the name of Dewberry participated. The appellant, shortly after the trouble between himself and the said Cora Towles, left the premises where the difficulty had taken place, went to his home, procured a shotgun, and returned to near the negro church and there shot and killed the deceased.

The appellant offered testimony to show that the deceased had threatened the appellant on the occasion in question. Appellant also introduced one witness who testified to a threat that had been made by deceased against appellant some two or three weeks prior to the killing. The appellant testified that he returned with the gun for the purpose of conversing with the people with whom he had the difficulty in order to settle their differences, and he brought the shotgun back with him for the purpose of protecting himself if necessary. He further testified that at the time he fired the shot which took the life of the deceased, deceased had a rock in his hand with his hand drawn back in a threatening position and he shot the deceased because he thought deceased was about to strike him or throw said rock at him.

One of the appellant's main contentions is based on the refusal of the learned trial judge to compel the state's attorney to deliver to his attorney certain written statements. This matter is presented by a bill of exception. The bill shows that in justification of said killing the defendant relied upon the fact that he acted in self-defense; that the deceased had threatened his life and said threats had been communicated to appellant and he believed said threats; that some ten or fifteen minutes before the killing, one Cora Towles had cut and slashed him with a knife about his hands and wrist; that the deceased, who was the uncle of Cora Towles, accompanied by one T. Y. Dewberry, had attacked the defendant and had tried to kill or inflict serious bodily harm to the defendant; that at the time of the actual killing deceased had a large rock in his hand and was threatening to strike defendant with same. The bill further shows that the defendant introduced as a witness one Herman Rusk, who testified on direct examination that he was at the scene of the homicide a short time before the actual killing and he saw Cora Towles, who was a niece of the deceased, cut the defendant twice with a knife and saw the said Cora Towles and deceased and one Dewberry run the defendant in between two automobiles and saw the deceased and the other man with rocks in their hands while they were running the defendant and while they were going up to where defendant was and that the deceased indicated that he was taking something out of his pocket; that it was necessary for the defendant to jump over the hood of an automobile in order to get out from the car and the deceased and the other man. The bill further shows that after the witness had so testified, the state's attorney exhibited to said witness, while he was on the stand and in the presence and hearing of the jury, a paper containing about two pages of typewritten matter and asked the witness if the same was not a statement that he (the witness) had given to Mr. Dawson Davis, another assistant district attorney, just a few days after the homicide, to which the witness answered in the affirmative and identified his signature; thereupon, the state's counsel proceeded to read portions of the statement and asked the witness if he had not made such statements, all of which was in the presence and hearing of the jury. The bill further shows that on cross-examination of the witness, state's attorney asked the witness if, as a matter of fact, he had not heard any one holler to the defendant, "Run, boy, run, or they will kill you," to which the witness answered that he had heard such statement...