Casner v. State

• Decision Date: 13 June 1900
• Parties: CASNER v. STATE.
• Court: Texas Court of Criminal Appeals

57 S.W. 821

CASNER v. STATE.

Court of Criminal Appeals of Texas.

June 13, 1900.

Appeal from district court, Fisher county; P. D. Sanders, Judge.

John Casner was convicted of murder in the first degree, and appeals. Reversed.

Dalton & Britain, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life. The homicide occurred in Haskell county, but the venue was changed to Fisher county. In order to properly understand the charge of the court, and the objections made by appellant to the introduction of evidence, we will make a brief statement of its salient features: Appellant and his son Lou Casner owned the tract of land adjoining the tract owned by deceased. Deceased's (Pitner's) tract and appellant's tract were immediately west of the tract known as the "Blount Pasture." Appellant had leased the Blount pasture, and, as a part of the lease contract, he had agreed to remove the west string of the Blount pasture fence, which formed part of the inclosure around deceased's land, which fence was upon deceased's land. Appellant knocked the wire off the posts, leaving it on the ground by the side of the posts. Appellant had frequently threatened to kill deceased if deceased nailed the wire back on the posts; and appellant's son had stated that he had planted several men, and would plant deceased if deceased persisted in his intent to rebuild the fence. Outside of the participants, there was but one eyewitness to the killing, Kit Parker, who testified, in substance: That deceased, Pitner, came to him about 2 o'clock on the evening of September 5, 1899, and asked witness to go with him to help fix the fence, which the witness did, after some persuasion; telling deceased that he would get into trouble if he attempted to fix it. Deceased had a Winchester shotgun and a six-shooter. He was driving a two-horse wagon, and leading a saddle horse. They went to the place where the fence was down, and stopped about 200 yards north of the southeast corner of the Welch place, owned by deceased. Deceased began fixing the fence. After awhile witness saw appellant and Lou Casner, his son, coming from the south, from appellant's home, and informed deceased of their coming; and deceased caught hold of the bridle reins of the horses, and attempted to turn the wagon crosswise between him and appellant and Lou Casner. Deceased then asked him to get out and unhitch the horses from the wagon, and then asked witness to go and tell appellant and his son what he said. "He told me to tell that `Scott had told him to fix up the fence, and, if they wanted to talk to me, to leave their guns down there, and I will talk to them.'" Witness met appellant and his son, and commenced to tell them what deceased said, and they did not seem to notice witness, only Lou asked witness what part he was playing. Witness did not recollect just what he said, but thinks he said he was simply looking on, whereupon appellant told witness that, if he did not want to get hurt, he had better stay down there. Appellant and son walked up within about 75 yards of where deceased was, and appellant got over on the west side of the fence, and was walking in a northwest course. His son got down on his knee and leveled his gun towards deceased, and hallooed for deceased to get out from behind the wagon. The son then got up and ran behind some mesquite trees, a short distance. Just before he got behind the trees, deceased fired at him. Then he fired at deceased. About that time appellant fired at deceased, also. He was about 40 yards southwest from deceased. Appellant shot at deceased three times. Deceased turned around to shoot at appellant, but did not shoot. He turned back and shot at Lou. Then deceased turned and shot at appellant. During this time Lou Casner was still shooting. About the time deceased shot at appellant, he dropped his gun and fell. Appellant and son both stopped and loaded their guns. Deceased got up, holding the muzzle of his gun, and started running west. He carried his gun about 25 yards and dropped it. He ran about 50 or 75 yards. About that time Lou Casner fired another shot at deceased, and deceased fell. Then both appellant and son walked south, towards their house. As soon as they got out of sight, witness went to deceased and assisted him in the wagon, and carried him to John King's house, where he subsequently died. In this connection the state introduced the following letter, which was written September 4, 1899, and received by defendant on September 6, 1899: "Mr. John Casner, Ample, Tex.—Dear Sir: Tom Pitner makes complaint to us that you have torn down the part of west string of Blount fence, which he joins, thereby leaving his crop exposed so that the stock are destroying his crops. We do not think it is best for you to do this, and would prefer that you let the fence stand until such time as you can withdraw it within Blount's line, and at once put it up as called for in your contract. Of course, we understand what time the contract gives you to do this. The law does not allow one party to separate his fence from that of another person without giving six months' notice. To do so is a finable offense. Then, again, the fence now stands on Pitner's land, and we cannot consent to its being so used as to harass and injure him, as he might get mad at us, and cause us trouble about taking the fence off his land. It is better that you let the fence stay up until you move it back inside of Blount's lines, and we request that you do this. Respectfully, yours, Foster & Scott." The testimony shows that Foster & Scott were the attorneys and agents of the owner of the land, and as such had rented the land to appellant. The state also proved by C. K. Jones that, after appellant was arrested and carried to Haskell, he heard appellant make this statement: "I heard defendant say that when Tom Pitner squatted down in some grass, weeds, or something, that he [defendant] thought Pitner was possuming, and told Lou Casner that he had better go and finish the damned son of a bitch, and that he [defendant] had nothing to shoot with." This statement had reference to the time and place of the killing of Tom Pitner. By the witness Otis Parker the state proved that appellant sent his sons Frank and Lou Casner up on the windmill, to see if Tom Pitner was fixing the fence, and said that they were going to make him quit putting up the fence, or kill him. Appellant and son Lou both made the remark. Appellant testified in his own behalf that: He took the wire off the posts, leaving the same by the side of the posts, on the ground. "We [meaning himself and son] were just ready to go to work to move the Blount fence, under the contract, and Lou was grinding his ax for that purpose, when this thing come up. Otis Parker told me that Tom Pitner was going to put up the fence, and I sent him word not to put it up. I did not want it put up, because I wanted to move it over into the Blount lands, and if it was put up I would have to tear it down. I would rather build a fence than to tear one down. One of the boys was up in the field, herding cattle, and had come down and told us that deceased was putting up the fence. I went over there, and Lou went with me. We got over there, and I told Tom that we come to see him about fixing the fence; and he said: `All right. Come on.' I got over the fence, and went on, and Lou went across the prairie. When I got up within about 40 yards of the wagon, and maybe 50, Tom threw his gun across the wagon and shot at Lou. Lou broke and run, and Tom shot at him again, and Lou fell. I thought he had killed him. Tom then shot at me three times. I fell down in the grass. I had a pocket pistol, and began to shoot at him with that. I thought my life was in danger before I shot, and I shot at him. Tom Pitner shot at me once before I shot at him." It appears by the evidence that Lou Casner had a Winchester, and shot at deceased with it. Appellant further stated that he was going to get deceased to quit fixing the fence, if he could; and, if he did not quit, appellant did not know what he would...