Bullock v. State

• Decision Date: 11 March 1914
• Citation: 165 S.W. 196
• Parties: BULLOCK v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W. 196

BULLOCK v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1914.

Rehearing Denied April 8, 1914.

Appeal from District Court, Maverick County; W. C. Douglas, Judge.

R. L. Bullock was convicted of murder in the second degree, and he appeals. Affirmed.

Jno. R. Storms, of Ft. Stockton, Jno. R. Sanford, of Eagle Pass, B. Baker, of Barstow, and Edwin F. Vanderbilt, of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years in the penitentiary.

The record in this case is very voluminous, consisting of several hundred typewritten pages. No extended statement of the evidence is necessary. Only a brief statement of the issues need be stated. Mr. English, with his wife and child, lived in a tent and dugout in Pecos county at the time of the killing. His nearest neighbor lived about a mile or two distant. Appellant lived some eight or ten miles from him. It was at the time a sparsely settled country. English got very sick. The deceased and other neighbors had been sitting up with him at night. Several days before the killing, appellant's sister, who lived with him, also went to the sick man's to aid him and Mrs. English. Appellant was in Coryell county when English was taken sick and knew nothing of it until he returned just a few days before the killing. The night before the killing, the deceased sat up with the sick man all night. Appellant's sister sat up part of that night also. Appellant stayed there that night but did not sit up with the sick man he went to bed in a tent some 20 or 30 steps away from the tent where the sick man was and those who sat up with him stayed. The theory of the appellant was that during the early part of that night, after he had gone to bed, the deceased insulted his sister, seeking undue familiarity with her and soliciting sexual favors, which she resented. He claims that his sister told him of this early the next morning in the presence of Mr. and Mrs. English, and that Mrs. English at the time then told him in the same company that the deceased, shortly prior thereto, had said to her (Mrs. English) that appellant's said sister, in effect, was a whore and permitted sexual favors to young men. The state's theory was that none of this was true, and that it was all a frame-up by appellant to establish a defense in the killing. The theory of the state was that appellant was intimate with Mrs. English, and that the deceased, the night before the killing, had actually caught and seen him having sexual intercourse with Mrs. English. Each side had more or less evidence tending to support their theory and deny that of the other. Deceased left the sick man's and went to his home early the next morning. Some time during the morning, before noon, appellant got up a horse, saddled him, and rode over the country, interviewing several persons and riding many miles hunting a six-shooter. To one of the parties whom he interviewed for this purpose, upon being told that the party had no pistol, he told such party, in effect, not to tell that he had applied to him for a pistol, or to say nothing about it to any one. He finally succeeded in getting a pistol, then rode to the house of the deceased. The deceased had no yard fence. He lived in a house and a tent, had a wife and several children. When appellant rode up to the house he saw one of deceased's little girls, and asked where her father was. The child replied he was in the backyard tanning a wolf hide. He told the child to tell her father to come there; he wanted to see him. The child delivered the message, and deceased sent word back to him for him to come back where he was. Thereupon appellant rode around where he was, and after the usual greetings between them and some further conversation and invitation by deceased for appellant to get down off of his horse, as testified to by the wife, who was with deceased at the time, appellant replied that he did not have time, and he wanted to see him, and asked him to walk off with him. The appellant remained on his horse, the deceased followed behind some 30 steps from where he got up from tanning the wolf hide, and according to the wife and the little girl, appellant asked the deceased, in substance, "What did you see last night?" And before deceased had time to reply, the appellant shot and killed him. The ball passed through the heart of the deceased and killed him instantly. Appellant then immediately ran off on his horse. Appellant disputed the testimony of the deceased's wife and daughter, and, in effect, said that when the deceased had followed him off some 30 steps to have the talk with him, he asked deceased what he had said and done to his sister the night before. Deceased replied that he did not do anything. Appellant said, "Don't go to denying it, you did; I want you to make apologies." Deceased replied, "You damn son-of-a-bitch, hit that road; that is what you do," with a motion of his knife or hand, and appellant said, "You take that back." Deceased said, "I will take your damn guts out; that is what I will do," and made a lunge at him with his knife, and he, appellant, thereupon shot and killed him. The evidence on the one hand was amply sufficient to show a premeditated, planned, deliberate, and cool murder without any provocation or justification. On the other hand, that the killing was justifiable in self-defense, or if not, it was only manslaughter.

The court, in a full, fair and unusually correct charge, properly submitted every issue to the jury for a finding.

The offense is alleged to have been committed on January 24, 1912, in Pecos county, Tex. The grand jury of that county duly indicted him at the February term, 1912, and returned an indictment, which was filed in said court on February 12, 1912. At the beginning of that term the court announced he would call, and it seems on the first day of the term entered an order, duly calling a special term of said court for all purposes, to be held immediately upon the adjournment of that term. The trial of the case in Pecos county was begun at said February term, some time early in March. When the case was called for trial appellant made a motion to continue on account of the absence of one witness and the sickness of another. The court at that time overruled said motion, and proceeded with the trial. A jury was organized, the appellant pleaded not guilty and some of the evidence was heard, and the trial proceeded until Friday. At that time the court saw appellant's sick witness, had a doctor to examine him, and then concluded that while he thought the witness was shamming to some extent in appellant's favor, it was best not to force the witness on the stand until the following Monday, and adjourned the trial of the case from Saturday until the following Monday. Before the court for that term expired, on March 9, 1912, the court duly made and signed and had entered in the minutes of the court, and read and approved an order to this effect: "And the court being in the midst of the trial of the case of the State of Texas v. R. L. Bullock, No. 344, pending on the criminal docket of this court, and I, W. C. Douglas, the judge presiding, deeming it expedient, do here now order that the present term of this court do continue until the conclusion of said pending trial." The trial was resumed the following Monday morning. Appellant's sick witness was put upon the stand, and testified on direct examination. Pending the cross-examination by the state, the court became satisfied that the witness was too ill to undergo a further cross-examination. The appellant's other witness had not been secured up to that time. The court thereupon announced to appellant and his attorneys in open court that if, under the circumstances, they desired to withdraw their announcement and continue the case, on their application he would permit it to be done. The appellant and his attorneys both, in open court, made a motion to that effect, which the court granted and thereupon, at their instance and with their express consent, discharged the jury. At the next term of the court, the court properly, to which there is no complaint, changed the venue from Pecos to Maverick county. When the case was reached for trial in Maverick county, appellant pleaded former jeopardy, based on the facts above stated as to what occurred at the first attempted trial in Pecos county. As we take it, he bases his contention on the fact that the appellant was not personally present when the court called, or continued the term of court to finish the trial.

By article 1726, R. S., it is provided that whenever any district court shall be in the midst of a trial of a cause when the time for the expiration of the term as fixed by law shall arrive, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. In such case the extension of such term shall be shown in the minutes of the court before they are signed.

By our law a defendant must be present, when he is tried for a felony, and during any and all proceedings of an actual trial. The continuing of the term of court which is about to expire, in order to have time to finish the trial, is no part of his trial, and it is not necessary, although it would not be improper, for him to then be present. It would be no more necessary for him to be present when such order is made or entered in the minutes than it would be for him to be present at the expiration of each day of the pending trial when adjournment occurs from one day to another, or for any other time pending the term when the court commences from day to day. He was not in former jeopardy by the proceedings shown above, and the court correctly sustained a demurrer to his plea.

The court did not err in overruling appellant's third application for...