Briscoe v. State

• Decision Date: 19 May 1920
• Docket Number: (No. 5804.)
• Citation: 222 S.W. 249
• Parties: BRISCOE v. STATE.
• Court: Texas Court of Criminal Appeals

222 S.W. 249

BRISCOE v. STATE.

(No. 5804.)

Court of Criminal Appeals of Texas.

May 19, 1920.

Appeal from District Court, Comanche County; J. H. Arnold, Judge.

Nathan Briscoe was convicted of murder, and he appeals. Reversed and remanded.

Callaway & Callaway, of Comanche, and Eidson & Eidson, of Hamilton, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was charged with the murder of one Jesse Burke, and upon conviction his penalty was fixed at 50 years' confinement in the penitentiary.

Appellant and deceased were neighboring farmers. Deceased owned a binder, and, shortly before the homicide, claimed to have lost therefrom a chain. Some time prior to the killing, appellant was engaged in cutting his grain with a binder which belonged to a Mr. Lindsey and the brother of deceased. While so engaged, the parties broke a link in a similar chain. Not being able to further operate said machine, Mr. Lindsey asked appellant to go to the house of deceased and get from him a link with which to mend the broken chain. Appellant did so, and, according to the witness, returned with one link; but, in the meantime, the parties had broken another link, and could not further operate the machine. Witness Nelse Briscoe, who was assisting in said cutting, testified that he went that night on horseback down to the place of a Mr. Tunnell, and got some links, with which the chain was again repaired, and the cutting continued. When appellant returned from going after the link at the house of deceased, he reported that deceased was not there, but that he had gotten the link out of his tool box. Very soon thereafter deceased began claiming that some one had stolen a chain from his binder, and seems not only to have made that statement to several parties, but after hearing that appellant had been to his house and gotten a link out of his tool box, deceased came and examined the chain on the Lindsey binder, and claimed that it was his, and stated that the person who got the link stole the chain. To some of the witnesses, deceased made a direct charge that appellant had stolen his chain. Appellant testified that, on the day before the homicide, he had a conversation with deceased, in which he was accused of stealing the chain. He said that he told deceased he was mistaken, and that he could prove it. He further said that he told deceased that he did get the one link, and that deceased then said, "Yes, and you got the chain too." Appellant further says that he explained to deceased how they fixed the chain, and told him that Nelse Briscoe got on his work horse and rode down to Doc Tunnell's in the night and got the links with which to fix it. He says that deceased asked him if he could prove that, and he told him that he could prove it by Nelse Briscoe; that deceased then said, if he would bring Nelse and have him state as appellant claimed, he would accept that statement. Appellant said that he then promised to get Nelse and bring him to prove that the chain on Lindsey's binder was not the chain of deceased, but was a chain that they had repaired themselves. Soon after parting with deceased on this occasion, appellant said he met the witness Talley, who told him that deceased had made very heavy threats against him. It appears from the evidence that the next day appellant went to the town of Gustine, some seven or eight miles distant, where Nelse Briscoe was staying, got Nelse, and went with him and a young man named Sewell, who had also been present when the chain was broken and mended, to the farm of deceased, and then out into the field where deceased was at work. Before going, appellant placed a pistol in his pocket, giving as his reason for so doing that he did not know what deceased might attempt to do to him; that he was a much smaller man than deceased, not physically strong, and no match for deceased in a personal encounter, if deceased should attack him. When appellant and the two men who were with him approached deceased, the fatal difficulty immediately ensued, and deceased was shot, once in the hand or arm, once in the side, and once in the back from the effects of which he died at once. The account given of the occurrence by the state's witnesses, and those for appellant, were widely different, and, as the case must be reversed, we express no opinion as to the evidence, pro or con. Appellant and his witnesses claimed that deceased immediately became angry, and attacked appellant, forcing him backward quite a distance, cutting at him with a knife, and that appellant shot him in self-defense.

It appears from bill of exceptions No. 3 that on the day of the homicide, and about 11 o'clock—the homicide being...