Burns v. State

• Decision Date: 07 February 1912
• Citation: 145 S.W. 356
• Parties: BURNS v. STATE.
• Court: Texas Court of Criminal Appeals

145 S.W. 356

BURNS v. STATE.

Court of Criminal Appeals of Texas.

February 7, 1912.

On Motion for Rehearing, March 20, 1912.

Appeal from District Court, Walker County; S. W. Dean, Judge.

Reason Burns was convicted of murder in the second degree, and he appeals. Affirmed.

W. W. Meachum, T. P. Buffington, A. F. Brigance, and Dean, Humphrey & Powell, for appellant. E. A. Berry, Dist. Atty., Hill & Elkins, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted by the grand jury of Grimes county for the murder of Monroe Peteete, and was tried at least once in that county. The venue was afterwards properly changed to Walker county, where this trial occurred, in which he was convicted of murder in the second degree and given the lowest penalty — five years in the penitentiary. He alone was tried in this case. In a former trial in Grimes county, he and his brother, Walter Burns, who were jointly indicted, were tried together. The result of that trial was appealed by both of the appellants then tried, and reported in 58 Tex. Cr. R. 463, 125 S. W. 901.

The testimony, as stated in the opinion on that appeal, was materially different from the testimony shown by the record in this case on this appeal. This record shows that some witnesses who testified on the other trial did not testify on this, and that some testified on this who did not testify on the other trial. None of the questions raised and decided on the other appeal are in any way raised on this appeal. Therefore the report of the other trial is no material aid in the decision on this appeal. The appellant himself testified on this trial. His brother Walter did not. His father testified on the other trial, but did not on this. Outside of the appellant, the state introduced three eyewitnesses to the killing. The appellant and these three witnesses were the only ones who saw it who testified.

It was agreed by all parties that Peteete was 22 years old when killed; that appellant was 18 years old in January; and that Walter was 16 years old in February prior to the killing.

The killing occurred late Sunday evening, May 31, 1908, at a little village named Keith. It was shown, without contradiction, that on that Sunday, several miles from Keith, there was a meeting, preaching, at which there seems to have been a public dinner. A congregation of at least a few hundred people attended it. Appellant did not attend the meeting, and was not at it at all that day, but was at his father's home, which was his home, several miles from the meeting and some six miles from Keith. Walter Burns did attend that meeting. So did the deceased. The record in no way discloses that there was any ill feeling, or cause for it, between appellant and the deceased. The only evidence of any ill feeling between Walter Burns and deceased was stated by one of defendant's witnesses only, who testified, on cross-examination by the state, that he knew that Walter Burns was mad at Peteete, and that Peteete did not like Burns. No other testimony appears in the record on this subject, and none on the subject of any ill feeling between appellant and Peteete prior to the killing.

It was shown that on the grounds at the church after the dinner there were several hundred people moving around, back and forth, just as would be at any other meeting of the character and kind. One of appellant's witnesses testified that when this moving around and back and forth was going on "Walter Burns and Monroe Peteete staggered together between the church and the water barrel. * * * I couldn't tell how that hitting of the shoulders together was done. They were just walking; Peteete was going towards the church, and Burns was coming from the church, and they walked together and hit their shoulders together. I don't know which one done it." On cross-examination, he testified: "I couldn't tell you which one of them struck his shoulder against the other. I don't know which one of them it was. I don't know whether it was the fault of either one of them. It is a fact that boys and men rush together in passing in a crowd of people. That frequently happens. I did not see anything unusual in the fact that they struck their shoulders together." Neither of the parties at that time stopped or said anything to the other. The deceased walked on some short distance to a crowd of boys, or young men, among them two of appellant's cousins, and was talking and laughing with them. No intimation that the talking and laughing was of anything that had occurred between Walter Burns and deceased. After standing talking with these young men or boys some several minutes, Walter Burns quietly walked up to deceased, touched him on the arm, or at least approached him quietly, and told him he wanted to speak with him. They then walked off — some of appellant's witnesses say about 8 steps and others about 15 — together, and then had some conversation. The evidence shows that at the time deceased was thus called off the people on the grounds were still milling around, moving back and forth, just as they had been doing. The conversation they then had, the effect of the testimony of appellant's witnesses shows, was in an ordinary tone of voice. Neither of them talked especially loud.

Another one of appellant's witnesses testified that when Walter Burns and deceased walked off and had this conversation that deceased "pulled out his watch and looked at it, and he told Walter the time of day it was. * * * He told him the time of day right at that time. * * * They were shaking their heads while they were talking out there, both of them were. There was a stump between them, and Monroe Peteete had his foot upon the stump part of the time, and was sort of leaning over that way. He didn't seem to be very angry. All that I saw to indicate that they were mad was that they shook their heads. I have seen people shake their heads lots of times when they weren't mad. Monroe Peteete was not doing anything to anybody that I saw when Walter Burns came there and carried him out of the crowd. Monroe was not doing anything to anybody that I saw. * * * All that I saw on the ground while I was there, he was behaving himself like a man. All I saw was when Walter Burns came up and called him off, and the only word I heard was Monroe Peteete told Walter Burns the time of day. I couldn't hear Walter Burns ask him what time it was."

Another of appellant's witnesses testified: "I seen Walter Burns walk up to the crowd there where we were standing and call Monroe Peteete off about 8 steps, and the first I heard of the conversation Monroe said he was ready right now, and Walter backed up a step or two and said, `I haven't got a thing,' and Monroe asked him if he would meet him at Keith at 6 o'clock, and Walter says, `I can,' and Monroe says, `Go on,' and Walter says, `I'm gone,' and turned around and went off." He further testified on cross-examination by the state, that at the time Walter Burns called deceased off and had said conversation with him Peteete was standing there talking to me and Jap Williams and Gus and Dave Burns. He was not bothering anybody on the face of the earth. * * * [Walter] Burns was not in the crowd that Peteete was in; he had not spoken to Burns before that, as far as I know. Monroe Peteete and the other boys that were there in that crowd were just talking and laughing there. We weren't bothering anybody."

After what the witness had testified of what had occurred and was said between Walter Burns and deceased, they further show that they separated; Walter going to or about the water barrel, and deceased going elsewhere to some friends. How long either or both of them remained on the grounds after that none of the witnesses definitely state. Neither is it definitely stated what time all this occurred; but we gather from the record that it was soon after dinner.

Walter Burns went from there home, a few miles distant. Before reaching home, he got from his brother-in-law, whose place he passed, a double-barreled shotgun. Appellant testified that with this gun he rode up in a fast trot or lope, about 3 or 4 o'clock, to his father's lot, where he and some companions were, called to him, and asked him if he had some buckshot, or shot. He replied, without stating what he replied, and Walter then told him that Monroe Peteete had cursed him. No other explanation was then made to appellant of why he cursed him, or of what he said in cursing him, or the occasion for it. When told this, appellant said to Walter, "Let's go to the house." Upon reaching the house, appellant sat on the front gallery; Walter went into the room where his father was sick, and had some talk with him therein. What this was is not disclosed anywhere in the record. His father got up out of the bed, dressed, and came on the front gallery where appellant was, told appellant he was sick and could not go himself, and that he (appellant) would have to go with Walter. It is not disclosed by the record from whom or where the buckshot were procured, on that occasion, with which the gun was loaded that Walter had procured from his brother-in-law; but both barrels were then loaded with buckshot. Appellant further stated in his testimony that he did not remember whether he or his father suggested that he (appellant) get a gun and take it with him. Anyway, a messenger was sent to a negro's house, who lived a few hundred yards from appellant, and his double-barreled shotgun, loaded with buckshot, was procured. Walter then turned over to appellant the brother-in-law's gun, and he (Walter) took the negro's gun. When his father insisted that appellant should go with Walter, because he (the father) was sick and could not, appellant testifies that he told him (his father), "I reckoned I could go, if Walter would agree to listen to what I said." They then got on their horses and rode rapidly to Keith, riding either in a fast trot or lope. It was some six miles...