Bordeaux v. State

• Decision Date: 02 June 1909
• Citation: 124 S.W. 640
• Parties: BORDEAUX v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 640

BORDEAUX v. STATE.

Court of Criminal Appeals of Texas.

June 2, 1909.

Rehearing Denied January 26, 1910.

Appeal from District Court, Eastland County; J. H. Calhoun, Judge.

John Bordeaux was convicted of manslaughter, and appeals. Affirmed.

D. G. Hunt, and Earl Conner, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

Appellant was indicted in the district court of Eastland county charged with the murder of one Hiram McCleskey, alleged to have been committed on the 4th day of December, 1907. He was put upon his trial at the January term of the district court of said county, and was on February 10, 1908, convicted of the crime of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of 2½ years.

The appellant and the deceased were both farmers living some five miles from the town of Eastland. Their relations had not been very friendly for something like two years, although there had been no open rupture, and the grounds of the unpleasantness between them were not very substantial. On the day of the homicide appellant left his house with a load of seed cotton en route to the town of Eastland. On the same day the deceased, McCleskey, was returning from Eastland, and they met in the public road about 80 yards south of the residence of one J. J. Frost. The deceased when found was in a country road, about 37 steps from where the wagons were, injured by a shot which entered behind, about two inches from the backbone, and which had passed entirely through him in a slightly upward range. A part of the difficulty was seen by two ladies, Mrs. J. J. Frost and her daughter-in-law, Mrs. Fannie Frost. The last-named witness saw most of the difficulty. She states: That, when she first saw the parties, they were in the road directly south of the house. That she did not then recognize them, but heard some very rough language used. That one of them told the other to get out of the wagon, and that he would whip him. That she thought this was the man who was going towards Gunsight, which from the position of both parties would mean deceased. That both men got off of their wagons, and one asked the other how he wanted to fight; that she did not hear any reply, but they started to fight, and one of them knocked the other down. That the man coming down the road towards Eastland was knocked down. This from the position of the parties would mean appellant, and the other man seemed like he was stamping the one knocked down. That one of them asked the other if he was satisfied. That she heard no reply to this, but the man who was down got up and that she then went to the place where her mother-in-law was washing. That the men then talked together, and one of them threw out some rough language. That she thought it was the man going towards Gunsight. That he told the other that he would not allow him to call him any such. That thereupon deceased went towards appellant who drew a pistol, when deceased asked him not to do that because he did not have any gun, and that the man with the pistol fired. That she immediately ran towards where her husband and other members of the family were working in the field. That there was another shot fired, but she did not see the parties at the time. The testimony of Mrs. J. J. Frost in a general way supports that of her daughter-in-law, Mrs. Fannie Frost, except that she states that after the pistol was fired the deceased ran behind his wagon, stooped down, and then raised up and then made a motion as if he was throwing. She did not see the second shot fired.

The state also introduced J. J. Frost, who at the time of the homicide was some 200 or 300 yards in the field. He went almost immediately to where deceased was, and found him 37 steps nearly south of the place where the wagons had been stopped, and about 10 yards from a pool of water between a neighborhood road and the creek. His testimony touching the whereabouts of deceased and his statement is as follows: "He was about 10 yards from a pool of water and between a neighborhood road and the creek. This road entered the public road where the wagons were standing. When I found him, he seemed to be suffering greatly. I think he was shot in the back through the hipbone, and the bullet came out in front a little to the left on the other side. I afterwards saw the wounds on the body of deceased. When I got to the wagons on my way to McCleskey, both wagons and teams had turned outside of the roadway towards the south. Mr. Bordeaux's wagon was pointed in a southerly direction, and had no team hitched, and Mr. McCleskey's team was headed in a southwesterly direction. My recollection is that Mr. Bordeaux's wagon was almost opposite Mr. McCleskey's wagon and team. Mr. Bordeaux's team had in turning apparently raised the hind wheel of his wagon six or eight inches from the ground in turning out. Mr. McCleskey had cotton seed on his wagon, and Mr. Bordeaux a load of seed cotton on his. I know the character of the road where the wagons met. There was plenty of room for either of them to have passed the other. My recollection is that Mr. McCleskey was traveling slightly uphill. I do not think it was over six minutes from the time of the shooting until I got to McCleskey. I saw no one at or near where the deceased was lying, and no one going from that place, and I am sure I was the first one to get to him after the shooting. When I first got to McCleskey, my recollection is I first asked him how much he was hurt, and he replied that he was so badly hurt that he did not think he would ever get over it. He said Bordeaux had shot him. He said that he was freezing to death. I asked him how he came to be so wet. He said that he had gone into a hole of water to try to stop the blood. He said he was shot right there where I found him, which was about 35 yards or more from the public road, and a little west of south from where the wagons were. The pool of water was about 10 steps from where he was then lying, just on the other side of a little bank. He said he was running away from Bordeaux trying to get over the bank when Bordeaux shot him. He said he had gone into the pool of water to stop the flow of blood, and had gotten back to where I found him, and had given down, and could not get any further. There was blood where he was lying, and blood between him and the pool of water. I asked McCleskey how the difficulty occurred. He said, `I was coming out from Eastland towards home, and met Mr. Bordeaux with a loaded wagon. I pulled out and gave half of the road, but Bordeaux would not give any of the road. I told him that he would have to give part of the road. He cursed me, and said I had run over him as long as I was going to. I told Mr. Bordeaux if he would get off of his wagon that I would give him the worst whipping he ever had in his life in a pair of minutes. We both got off the wagon about the same time and started toward each other. We passed several licks, and I knocked Bordeaux down with my fist, and kicked him and asked him if he had enough. He said that he had or was satisfied. I then started back toward my wagon, and Bordeaux called me a son of a bitch. I turned around towards him, and said that I would not take that. He pulled his pistol. I told him not to shoot, and that I was unarmed. He shot at me. I ran around the wagon and picked up a rock, and threw it at him and missed him. I saw he was going to shoot me. I ran off down here thinking that I could get into the creek before he could shoot me. When I had got down here, he shot the second time and hit me.' This conversation all occurred immediately after I got to the deceased, not more than 10 minutes after the shooting. I think my son Dallas Frost was the next man who came up. Then two other men came along in a mail hack, and together we all carried Mr. McCleskey to my house. I could not say how long a time intervened between the two pistol shots, but it didn't seem very long. I did not charge my mind with it at the time, and I know of nothing that would enable me of my own knowledge to give the length of the interval. There was probably 15 seconds between the two shots or even more than that. There was considerable blood where I found the deceased lying and a trail of blood from where he was lying to that pool of water, but I could find no other blood anywhere except between where he was lying and the water. I made a careful examination for blood several hours after the shooting, of the ground between where the wagons were standing and where I found the deceased, but I could find no blood nor trace of blood anywhere around there except where deceased was lying and between him and the pool of water. I have stepped some distances since the examining trial, that are mentioned in the testimony. It is 82 yards from the porch of the house south to where the wagons were standing. It is 100 yards from the well or wash place southwest to where the wagons were standing at the time of the difficulty. And the well is 60 yards east of the porch of the house. My wife and daughter-in-law, Fannie, showed me the place they were getting under the wire fence when the second shot was fired. That place is 13 yards from the well. The place where the wagons stopped is in plain view of the dwelling house and of a person at the well. There are only a few trees there. There is a common wire fence in front of the dwelling and along the south line of the J. R. Frost farm, there. After the deceased was carried to my house and given some attention, I designated and pointed out to Dr. Boon, Dr. Downtain, J. W. Steele, and probably other persons the place at which I found the deceased lying just after he was shot, and they examined the blood spot or pool of blood where he was lying and also the trail of blood between there and the pool of water and looked for blood at other places there."

Perhaps it will aid in understanding the location of the parties...