Burnett v. State

• Decision Date: 09 March 1904
• Citation: 79 S.W. 550
• Parties: BURNETT v. STATE.
• Court: Texas Court of Criminal Appeals

79 S.W. 550

BURNETT v. STATE.

Court of Criminal Appeals of Texas.

March 9, 1904.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Fred Burnett was convicted of murder in the second degree, and appeals. Reversed.

Thurmond & Steger, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The punishment assessed was 30 years in the penitentiary for murder in the second degree. A sufficient statement of the evidence shows that defendant and deceased had a rather heated quarrel near the hardware store of Thompson & Abernathy, in the town of Bonham. They separated at a distance of about 45 feet from the store, defendant going east, and then north, and deceased going west to the store. Deceased left appellant with the avowed intention of getting a gun to be used on defendant, and with this purpose in mind went to Abernathy, who was at the time in front of his store, and inquired the cost of hiring a gun for 15 minutes. In reply to Abernathy's question, deceased stated he wanted it for the purpose of killing a mad dog in Locksboro, which seemed to be an addition to the town of Bonham. Abernathy told deceased that he did not want to kill a mad dog; that deceased was mad, and to go off and get cool. Defendant seems to have heard this conversation as he (defendant) was going away from deceased. The witnesses Wethersby, Lock, Moore, and Frazier were permitted to testify to matters and conversations that occurred, after appellant had gotten out of sight and hearing of deceased, between these witnesses and deceased, covering a period of perhaps an hour to an hour and a half. Defendant and deceased met later on during the day in the Locksboro addition, and in a difficulty between them appellant shot and killed deceased under circumstances which he claims made his case one of self-defense. The state's case justified the verdict of murder in the second degree.

Exception was reserved to the testimony of Wethersby, Moore, Frazier, and Lock. The bill of exceptions with reference to Wethersby's testimony, after stating the conversation between Abernathy and deceased, which defendant is supposed to have heard, further shows that defendant saw deceased go into the hardware store, and heard deceased ask for a gun, and after witness had heard deceased say he would get a gun and kill defendant that defendant left the scene of the trouble, and disappeared from witness' view. And he was permitted to further testify as to all the acts of deceased, and the witness' going to Graham, Crawford & Co.'s store, loading drays with empty boxes, moving the boxes from the front to the rear of the store, and unloading them; that he went to another store, and carried a piano box from upstairs downstairs, and did other things about their business with their drays. And in about an hour deceased went with his dray to Boswell's store, and took on a load of furniture, and drove north to Locksboro, where the killing occurred about an hour or an hour and a half after the quarrel between deceased and defendant. The bill of exceptions with reference to Moore's testimony recites that after defendant and deceased's quarrel near the hardware store of Abernathy, and after deceased had gone to Abernathy, and sought to rent a gun for 15 minutes, and after Abernathy had informed deceased he had no use for the gun to kill a mad dog in Locksboro, etc., and while defendant was neither in sight nor hearing of deceased or Moore, that Moore and deceased went with drays to the store of Graham & Crawford and moved boxes from the front to the rear of the store, and thence to another place and moved a piano, and subsequently loaded furniture on the dray which deceased was driving at the time he was killed; and that another man had intended to take the dray of said furniture to Locksboro, but the other man's family was taken sick, and it was then decided to substitute deceased for the other man to drive the dray of furniture to Locksboro, etc. The testimony of Frazier to which exception was reserved was to the effect that deceased came to him and talked with him after the first difficulty between deceased and appellant, and that the witness went immediately in search of defendant, and defendant was just leaving the store of Lovelace, where he was working as deliveryman, and witness was constable. Lock was permitted to testify that after deceased and defendant had their quarrel at Abernathy's store, and after defendant had gotten out of sight, and deceased had gone after his gun with which to kill defendant, he stated that he went to Constable Frazier, and talked to him in regard to the matter, and Frazier went immediately in search of defendant, etc. Various objections were urged to the introduction of this testimony. The court signed the bill reserved to Wethersby's testimony, as he did the bill reserved...