Casey v. State

• Decision Date: 08 May 1907
• Citation: 102 S.W. 725
• Parties: CASEY v. STATE.
• Court: Texas Court of Criminal Appeals

102 S.W. 725

CASEY v. STATE.

Court of Criminal Appeals of Texas.

May 8, 1907.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

John Casey was convicted of murder, and appeals. Reversed.

R. T. Wilkinson, Ralston & Ward, and R. E. Davenport, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary, and prosecutes this appeal.

This is the second appeal of this case; it having been reversed at a former term of this court. See Casey v. State, 90 S. W. 1018, 14 Tex. Ct. Rep. 818. A summary of the facts shows that appellant was a farmer and deceased was one of his tenants. Both lived on the same farm, and in the same house, sleeping in separate beds in the same room. There were no eyewitnesses to the homicide, except appellant, who testified in his own behalf. Appellant's theory is self-defense, and is predicated on his evidence to the effect that deceased and himself had been at outs for several days; deceased refusing to speak to him. On the night of the homicide, appellant states that deceased was sitting on the steps of the gallery, and he (appellant) went out on the gallery to get a drink out of the bucket of water there, and while there accosted deceased, remarking, "Did you say you was going to haul cotton to-morrow?" and deceased said, "No"—spoke sort of sharp—to which appellant replied, "I understood you to say you was going to haul," and deceased said, "No, I never." Appellant said, "What are you mad at me about?" to which deceased replied, "You have been running around, inquiring into my business." Appellant replied: "I haven't. Who told you?" Deceased said, "Tobe Lee." Appellant replied: "I haven't told Tobe Lee anything. I did ask Tobe if he wasn't down at Walter's the other morning when you come up there, and he said he wasn't." Then deceased said: "I sent for you to come and help fix a fence, and you wouldn't do it." Appellant replied: "My arm is sore and I couldn't fix the fence." At this deceased said, "God damn you, why didn't you tell me your arm was sore?" And deceased jumped up from where he was sitting and started at appellant. Appellant says he was then right against the door facing, and just ran inside and grabbed the gun down, which was in the rack by the door, and told deceased to hold up, or stand back, or he would shoot him, and as quick as he jerked the gun he fired; that at the time he fired deceased was reaching with his left hand and had the knife in his right hand, stating at the time, "God damn you, I will cut your God damn throat" or "head off." It was shown that the shot struck deceased in the left breast just above the heart. Some blood was found on the gallery, and on the steps, and leading from the steps to some 10 or 15 steps to where the body of deceased was found near the gate, and there was testimony showing that when deceased's body was found a knife was found in his hand; the hand relaxed, not grasping the knife. The state relied for a conviction on circumstances rebutting the theory of self-defense. Some of the circumstances consisted in statements made by appellant to others regarding the homicide. Among others, Snead testified that appellant told him that he (appellant) ought not have gone out on the gallery when he did, but the really thought Harrison had gone to bed, but when he went out Harrison was sitting in the door with his feet on the second step, and he asked Harrison what he was mad with him about, and a conversation ensued between him and deceased about as appellant stated it, except that this witness says that appellant's statement showed that he cursed deceased first, and appellant then said, "God damn you, I will shoot your God damn head off," and Harrison said, "Shoot, damn you," and Casey said Harrison got up and started to turn around. Then he grabbed the gun and shot deceased. There is also some testimony with reference to blood that was found on the gallery, and some expert testimony with regard to the distance a man could go after being shot as deceased was, and as to whether he could grasp a knife and carry it the distance he did after being shot; the suggestion, on the part of the state, being that the knife must have been placed in deceased's hand after he was shot. This is a sufficient statement of the evidence to discuss the questions assigned.

Appellant made a motion for continuance predicated on the testimony of the absent witnesses Mrs. Laura Casey and Sam Casey. It appears that these witnesses were related to appellant, and lived with him at the time of the homicide. They were present at the former trial of the case. The former case was reversed and mandate received some time in January, 1906. At the May term a continuance was had by appellant on account of the absence of Laura Casey. This trial occurred on the 27th of November, 1906. No diligence was used for these witnesses until the 3d of October, 1906, when process was issued for them to McLennan county, where it was said appellant had learned they had gone; but they were not found there, and process was returned not served. Process was also issued subsequently and before the trial to Navarro and Angelina counties, and returned not served. It was shown that appellant sent the sheriff of Franklin county to McLennan county to get trace of where the witnesses...