Claxton v. State

• Decision Date: 17 March 1926
• Docket Number: (No. 9382.)
• Parties: CLAXTON v. STATE.
• Court: Texas Court of Criminal Appeals

288 S.W. 444

CLAXTON v. STATE.

(No. 9382.)

Court of Criminal Appeals of Texas.

March 17, 1926.

State's Rehearing Granted May 26, 1926.

Appellant's Rehearing Granted November 10, 1926.

Appeal from District Court, Milam County; John Watson, Judge.

J. A. Claxton was convicted of murder, and he appeals. Reversed and remanded.

Henderson, Kidd & Henderson, of Cameron, for appellant.

A. J. Lewis, Co. Atty., and Chambers, Wallace & Gillis, all of Cameron, Sam. D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

LATTIMORE, J.

Conviction in district court of Milam county of murder; punishment fixed at confinement in the penitentiary for life.

This is a companion case to Claxton v. State, No. 9512, 103 Tex. Cr. R. 233, 280 S. W. 832, opinion handed down during this term. The facts are very much the same as in the companion case, and we see no reason for entertaining divergent views as to the law of the case.

It is shown without dispute that on the morning of the homicide appellant shot and killed two men, one a neighbor of long standing and the other of comparative recent acquaintance, with neither of whom he had had any words or quarrel or against whom he entertained any grudge. He had a married daughter, Mrs. Gunn, who was in a delicate condition, expecting confinement. In addition to the anxiety ordinarily attendant upon such condition, said daughter was very large and fleshy, and the family were concerned about her. It is shown without contradiction that an unmarried daughter of appellant came to the house and told him that she had just been down to her married sister's and learned that the two men who were slain had been there and cursed and abused Mrs. Gunn and called her vile names. It is further shown that, without going back to the mule and plow which he had left standing in the field, appellant took his gun and went down the road toward Mrs. Gunn's, said road leading past the place where said two men lived. McAlpine and Junek, the two men who were killed, were sitting on the porch at McAlpine's house as appellant approached. When he turned in the gate they fled, and he began shooting. He shot through the door of the house, wounding Mrs. McAlpine, and also appears to have shot other times through the walls, according to the testimony of parties who inspected the premises later. He then pushed the door open, went inside, shot and killed McAlpine, and pursued Junek out into the garden, where he shot him through the head and body time after time with a Winchester rifle.

There is not a suggestion worthy of consideration in this record that the killing resulted from other than the passion aroused by the communication of the insulting words and conduct to his daughter, or that the circumstances surrounding the homicide showed other than that it was the first meeting, and that appellant's mind was actuated alone by uncontrollable rage and anger. This is recognized by statute as adequate cause to produce in the mind of a person of ordinary temper such degree of anger, rage, resentment, etc., as to warrant the reduction of the offense to manslaughter. While it is not indispensable to a conviction for homicide that a motive be shown, and it is apparent that the killing may be attended with such circumstances as to show malice, deliberation, etc., still, where the overwhelming testimony shows the existence of a state of facts which ordinarily would support only a conviction for manslaughter, and nothing in the record points to coolness, deliberative or formed design, and there appears a conviction for murder with a penalty as grave as that inflicted in the instant case, this court is unwilling to lend its sanction to such a verdict.

The fact that one of the men killed was almost a stranger to appellant; that the killing took place within so short a time after the communication to him of the fact of the insulting conduct; the manner and method of the killing of both men; the lack of evidence of coolness and formed design; the absence of all evidence of premeditation — seems to so strongly indicate that appellant was not in a condition where his mind was capable of cool reflection as to make us feel that the case ought to be reversed and remanded for another trial, and it is so ordered.

On State's Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing, state's counsel insists that there were matters of evidence combatting the idea that, at the time the fatal shots were fired into the body of the deceased, appellant's mind was, by adequate cause, rendered incapable of cool reflection. As we understand the record, there were certain facts established by uncontroverted evidence. Among them are the following: Otto Junek, J. M. McAlpine, J. A. Claxton, and Jess Gunn were neighbors. They were farmers and men of family. The distance between the home of Gunn and that of the appellant was between 500 and 600 yards, and McAlpine's home was between them. Mrs. Gunn was the daughter of the appellant. Junek and the appellant had resided in the community for some time. McAlpine was a newcomer. All the parties named lived upon rented farms. Gunn resided in a house upon the farm under the control of Junek, and was employed by him as a farm hand. On the day before the homicide, Junek had informed Gunn that he would have to surrender the house occupied by him in order that McAlpine might occupy it. He also informed Gunn that the water in the cistern at the house occupied by Gunn was not to be used for washing clothes. On that evening Gunn left his home in search of another, and his wife, Carrie Gunn, spent the night with the appellant, her father. On the following morning, she returned to her home and was preparing to wash her clothes, using water from the cistern. Martin Junek, a youth, son of the deceased, at the request of his father, came to the Gunn home and notified Mrs. Gunn that Junek objected to the use of the water for washing clothes. The chain was removed from the cistern. According to the boy's testimony, Mrs. Gunn declined to desist from the use of the water, and improvised means of drawing it with a rope and bucket. This situation was apparently reported by Martin Junek to his father, who then went to the home of McAlpine, and the two, in company with Martin Junek, went to the Gunn home, where occurred a conversation with Mrs. Gunn, the nature and duration of which are sharply controverted. From the Gunn home, Junek and McAlpine went to the home of the latter, where, within a short time, the homicide took place.

The evidence touching the incidents of the homicide is set out in some detail in the companion case of Claxton v. State, reported in 103 Tex. Cr. R. 233, 280 S. W. 832, to which we refer for the details, as they are, in substance, in accord with the evidence in the present record.

According to Mrs. Gunn, both Junek and McAlpine, during their interview with her, in their language and conduct, were abusive, threatening, and insulting. As a result thereof, she was so shocked as to make her sick. Shortly after the departure of Junek and McAlpine, appellant's daughter Vera appeared near the Gunn home for the purpose of getting mail. She was called by Mrs. Gunn, and her version of the interview with the deceased and McAlpine was reported by Mrs. Gunn, and, according to appellant's testimony and that of Vera, she in turn reported the matter in detail to the appellant, and told him that Mrs. Gunn's physical condition was such as to demand his attention. Mrs. Gunn, at the time, was supposed to be pregnant. From the evidence we gather that in this she was mistaken. According to the testimony of the appellant, he believed her to be in that condition, and started to her house to relieve her, taking his gun with him. In passing the McAlpine home he observed Junek and McAlpine, and the tragedy took place. After the homicide, appellant went to the Gunn home and assisted his daughter to his own home.

State's counsel adverts to the conduct of the appellant after the homicide as one of the circumstances upon which reliance is had to support its theory above mentioned. It appears that, during the time intervening between the homicide and the appearance of the officers, the noon meal was prepared, and, when the officers arrived, the Claxton family was about to eat dinner. On the subject we take from the officer's testimony the following:

"He was fixing to eat dinner and asked me to let's eat dinner before we came to town, but I did not go in the house. I do not know whether dinner was then ready or whether he was eating — I was just going by what he said."

Another circumstance to which the state adverts is that a dog at the home of Gunn was tied, and that appellant, before taking his daughter to his home, released the dog so that it might not be abandoned.

As stated above, the details of the homicide are revealed in the report of the companion case. In the tragedy, Mrs. McAlpine was wounded and McAlpine and Junek were killed. During the encounter, Mrs. McAlpine attempted to shut the door which would have prevented the appellant's entrance, when he fired through the door and the shot struck her. Junek, in the meantime, had fled. McAlpine had also fled and was hiding the children in the yard. Appellant inquired of McAlpine where Junek was, to which McAlpine replied that he did not know. Appellant then said, "I will find him and will kill you too," using an oath. He then shot McAlpine and pursued Junek into the garden, where he shot him a number of times. According to the state's theory, Junek was shot through the head twice after falling on the ground.

The incidents of the tragedy covered some little time. The evidence in the report of the decision in the companion case reveals the various movements of the parties to the tragedy. The right of the court to order a reversal of the judgment because of the insufficiency of the facts in a given case is not...