Cockrell v. State

• Decision Date: 23 April 1919
• Docket Number: (No. 5104.)
• Citation: 211 S.W. 939
• Parties: COCKRELL v. STATE.
• Court: Texas Court of Criminal Appeals

211 S.W. 939

COCKRELL v. STATE.

(No. 5104.)

Court of Criminal Appeals of Texas.

April 23, 1919.

On Motion for Rehearing, May 21, 1919.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

A. E. Cockrell was convicted of assault to murder, and appeals. Affirmed.

Lopp, Roberson & Cogdell, of Ft. Worth, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of the offense of assault to murder, and his punishment fixed at six years in the penitentiary.

Briefly stated, the facts show that the prosecuting witness, Harmon, was a plain clothes policeman in the city of Ft. Worth, which was admitted to be incorporated. Information was presented by credible persons to the office of chief of police in said city on January 10, 1918, that appellant had stolen $300 from the company by which he was employed, and that he was about to make his escape, and thereupon said Harmon at once began a search for appellant, finally locating him on what is called the North Side in said city. Said witness found appellant in a car, which was pursued and overtaken by said witness in another car. Upon overtaking the other car Harmon got out of his car and got in with appellant upon the rear seat and told the driver of appellant's car to take them to the city hall, but as said car came along north Main street, going in the direction of the city hall, and while near the baseball park, appellant asked Harmon to close the car door on his side, said door having been left open when Harmon got into the car. Thereupon, and while Harmon was trying to close said door and his attention was occupied therewith, he says he heard a gun fire, and looking around saw appellant had a gun leveled at his head, and thereupon Harmon grabbed it, and just then it fired again, and the bullet went through his hand. He says that when appellant fired the first shot he said "God damn you, I will get you;" that from the moment of the firing till they reached the front of the courthouse the two men were scuffling for possession of the pistol, each holding and trying to break the grip of the other; that appellant was ordering the driver to go down this side street and up the other, and Harmon was ordering him to go to the courthouse; also that when they got to the courthouse Harmon called to Deputy Sheriff Witcher, who was out in front, to come and help him disarm appellant. Mr. Witcher testified that, when appellant resisted, he pulled him out of the car and asked him why he shot the officer, and appellant said: "The damned policeman tried to shoot me." No effort was made by witness Harmon to obtain a warrant for appellant's arrest after he learned of his having committed a felony. He said that he was looking for the appellant during the time and located him about 3:30, and that he at once went after him; that when he found appellant he told him his name and business and that he was an officer and wanted him to go to the city hall, stating that he was wanted for embezzlement, but did not tell him the amount he was charged with embezzling. Appellant did not ask if he had any warrant nor that any be shown him. This witness said that he was so close to appellant when the first shot was fired that his face was powder burned.

Appellant's driver, a young man named Coffin, testified for the state, detailing the efforts he and appellant made to get out of Ft. Worth and to Dallas during the day of the 10th before going to the North Side, also the circuitous route by which they avoided the downtown streets as they were going through Ft. Worth proper on their way to the North Side, and told many other facts supporting what the state thought was the theory of the suspicious conduct of appellant. Coffin says that he and appellant were coming back from the North Side, and he was taking appellant to catch a train, when they met the car in which were the witness Harmon and an employé of the company for which appellant had been working; that, when this car passed, appellant told him to "open his car up"; that he did so, but appellant looked back presently and saw that the officer had turned and was coming in close behind them, and thereupon appellant told him to turn first one way then another, which he did, but was overtaken, and the officer got in the car with himself and appellant. This witness said the first he knew of any trouble in the rear of the car was when the first shot fired; that he looked, and the gun was pointing at the officer's head, and appellant said, "God damn you, I will get you," and that there was another shot fired right away, and that the two men struggled over the pistol all the way to the courthouse; that both men kept telling him where to go. Appellant tried to get him to turn down side streets, and the officer told him to go to the courthouse. All this witness could remember of the conversation when the officer got into the car was that appellant asked him what they wanted him for, and the officer said he did not know, and said, "You will have to find out when you get there." This witness also said there were two bullet holes in the curtain of his car after the affray which were not there before; and he brought the curtain into the courtroom and showed it to the jury. Officer Witcher testified to being asked by officer Harmon to help him take the pistol away from appellant, which he did, pulling him out of the car, and that the conversation took place above detailed. It was admitted by the state that no complaint was filed against appellant prior to his arrest.

Appellant's testimony was substantially that, when the officer came up to the car in which he was going to the train, the following occurred:

"He held the gun against the car and raised the curtain and put his head in and says, `Is this Mr. Cockrell;' and I says, `Yes;' and he says, `I will have to detain you;' and I says, `For what?' and he turned and said, `Much obliged to you for bringing me out,' and put his gun in his hip pocket with his back to me and got in the car; and I said, `What does your warrant charge me with;' and he says, `Investigation;' and I said, `Investigation of what;' and he said, `Oh, I don't know, but we are going to be easy with you;' and I said, `would you mind stopping here so I can phone Mr. Parker, my attorney, before we go down;' and he says, `No; no.' I had a gun in my pocket, but I hadn't been carrying it. The only reason I was carrying it that day was that I had been carrying money back and forth to the camp. Six weeks prior to this trouble, I had never carried it at all. I had it in my pocket for I was going to sell it. I needed some money to settle an affair with Mr. Parker, and I was short some money, and I wanted to sell this gun to make up the deficiency. The first thing that occurred to me was to get that gun out of my pocket and get it down in the car so they wouldn't have that charge against me, too. Mr. Harmon didn't search me, and that was my first thought, was to get rid of that gun and get it out of the way, and another thing, I wasn't sure that he was an officer; I had only his word for it, and he showed me no warrant nor any badge, and he was in plain clothes. The car door, as he got in, was swinging open, and I asked him to close the door, and at the same time I reached over and tried the door on the right, and as we both came up I had the gun out of my pocket, and he made a grab for me, and I hung onto the gun, and the gun exploded. I didn't have my finger on the trigger or handle. When I went in my pocket for it, I got it by the chamber, and we began to struggle over it, and in the struggle we had it by the back of the chauffeur's head, and I thought to get the barrel down to the floor, and it went off the second time, and I says, `Man, you are shot through the hand,' and I called to the chauffeur and says `Don't go down too close to the curb.'"

He denied making the statement attributed to him in the car by Coffin and Officer Harmon, to wit, "God damn you, I will get you," and also denied the statement testified to by Officer Witcher. This is practically all of the evidence necessary to an understanding of the opinion.

Section 3 of chapter 3 of the city charter of the city of Ft. Worth is stated in the statement of facts to have been admitted in evidence, but the same is omitted from said statement. We observe, however, from an examination of said charter, which we have before us, and which was passed by the Thirty-First Legislature (Sp. Laws, c. 31), that section 6 of chapter 11 of said act especially provides that this act shall be a public law, and that the courts shall take judicial cognizance and knowledge of the contents and provisions thereof, and that it shall not be necessary to plead or prove the same. This, we think, sufficiently...