Condron v. State

• Citation: 155 S.W. 253
• Parties: CONDRON v. STATE.
• Decision Date: 05 March 1913
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 253

155 S.W. 253

CONDRON v. STATE.

Court of Criminal Appeals of Texas.

March 5, 1913.

Rehearing Denied April 2, 1913.

Appeal from District Court, Jones County; Jno. B. Thomas, Judge.

A. O. Condron was convicted of manslaughter, and he appeals. Affirmed.

See, also, 62 Tex. Cr. App. 485, 138 S. W. 594.

Cunningham & Oliver, of Abilene, B. F. Reynolds, of Throckmorton, Chapman & Coombes, of Anson, and Goodson & Goodson, of Comanche, for appellant. Jas. P. Stinson, Dist. Atty., of Anson, T. J. Wright, of Throckmorton, Jas. P. Kinard, of Haskell, Higgins, Hamilton & Taylor, of Snyder, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder, and when tried was convicted of manslaughter, and his punishment assessed at two years' confinement in the penitentiary.

The record discloses that appellant and deceased were rival candidates for sheriff of Throckmorton county; deceased being elected. The state of feeling between the two men was not friendly subsequent to the election. The state's evidence would disclose that appellant on several occasions made threats as to what he would do under given conditions. It also appears that appellant also bore ill will towards Mr. Nichols, a deputy sheriff. It also appears that appellant and W. J. Overcash were friends, and were together when clashes arose between them and the sheriff or his department, and that Overcash also felt unkindly towards the deceased sheriff. On the evening of the fatal difficulty appellant was at the feed store of W. J. Overcash, and he and Charlie Jones engaged in a war of words. Jones says that appellant asked Overcash, "Where is my pistol?" and when Overcash told him where it was appellant got it and fired, the ball striking near him. R. H. Barnes, who worked at the feed store, says the pistol was not kept at the store; that they kept a shotgun there, but no pistol; that he is of the opinion the pistol belonged to Overcash. Appellant testified he asked Overcash, "Where is your pistol?" and when Overcash replied he got the pistol, and while handling it let it go off accidentally. The testimony would show that Overcash and Barnes at this time took the pistol from appellant, unloaded it, and locked it in a desk drawer. Jones left the feed store and went before the justice of the peace, and swore out a complaint against appellant, charging him with unlawfully carrying a pistol. The justice of the peace issued a warrant for the arrest of appellant and delivered it to the deceased sheriff, Jones, telling the sheriff appellant was at Overcash's feed store. He called his deputy, Mr. Nichols, and they started to the store, ostensibly to arrest appellant on the warrant. While Jones was gone, and after he had gone to the office of the justice of the peace, it is shown that Overcash unlocked the drawer and again loaded the pistol, placing it in the drawer, but leaving the drawer unlocked; he and appellant both being present. They then took seats on the front porch of the feed store, where the courthouse would be in plain view. While they were sitting there, L. E. Devall came to the feed store, and in a conversation remarked, "It looks like the officers are getting busy up town," when appellant replied, "You must be next." When Devall replied he knew nothing of the matter appellant spoke to Overcash, and said, "Uncle Bill, he must be next;" and then appellant remarked, "Well, one thing sure, I am not going to talk to them this evening; we ran for the same office once, and he [Spurlock] may be a better man than I am in one way, but, by God, he ain't in any other. I won't be talked to this evening; they can talk to me Monday, but, as for that G____d d____n long-legged Nichols, he can't talk to me at all." Witness Devall further testified that about that time appellant remarked, "There comes the G____d d____ned s____n of b____hes now," and he (witness) looked and saw the deceased, Sheriff Spurlock, and his deputy, Mr. Nichols, coming towards the feed store. As appellant made this remark he and Overcash got up, left the gallery, and went in the feed store.

Deputy Sheriff Nichols says as they approached the feed store they saw appellant and Overcash get up and walk in the store, and he saw appellant go to this desk, where the pistol was in a drawer, get the pistol, Overcash got a shotgun, when they both returned to the front, one getting on the right-hand side and the other the left-hand side of the door, when Overcash waved his hand, and instructed them to come no closer; that the deceased sheriff then told Condron he had a warrant for his arrest, and the shooting began, Overcash raising a shotgun and firing the first shot, and which shot was the one that inflicted the fatal wound. The state's witnesses would show that a general fusillade ensued in which Overcash, appellant, Spurlock, and Nichols all engaged.

Appellant in his testimony admits that he and Overcash were sitting on the gallery when Devall came to the feed store, and that, when Devall told him about the officers getting busy, he remarked that he (Devall) must be next, and that, when he saw two men coming towards the feed store, he made some remark, either "there comes the d____n rascals now," or the remark Devall says he made; that he thought it was Nichols and Jones who were approaching the store; that he and Overcash did get up and go in the store, and were in the relative positions that the state's witnesses place them. He denies that Spurlock told him he had a warrant for his arrest, but says when the officers approached the store Spurlock reached for his pistol, and Overcash for his shotgun, when the firing began, he stating that Spurlock fired first. He says he had no weapon at that time, but he was wounded in the leg, and fell back, and in doing so fell against the desk in which the pistol had been placed, and he then got the pistol, but did not shoot. After the difficulty the pistol was found near where appellant was sitting, and he asked the man who found it to put it away, and say nothing about finding it. Virtually all the testimony, outside of that of appellant's, would go to show that both a shotgun and pistol were fired out of the house in which Overcash and appellant were situate, but there is a sharp conflict in the testimony as to who fired the first shot, Overcash or the deceased. This, we think, is a sufficient summary of the evidence to discuss the questions raised. There are no bills of exception to the reception or rejection of testimony; the whole attack being on the charge of the court as given.

The criticisms of the charge on murder need not be considered, as appellant was found guilty of only manslaughter, and the definition of manslaughter, if slightly inaccurate, would not be harmful to appellant, unless it conflicts with or infringes on the charge on self-defense, as appellant was given the lowest penalty for manslaughter.

The criticisms of the argument of state's counsel, in the light of the qualifications of the bills by the court, and the instructions given in regard thereto, present no error. The first criticism of the charge relates to the following paragraph of the charge: "If on the day of the killing of the deceased the defendant was in the grainhouse and feed store of W. J. Overcash that was run in connection with a wagon yard, and was there carrying a pistol on and about his person, then I charge you that he was violating the laws of Texas, for which he was subject to arrest by the sheriff or any deputy sheriff of Throckmorton county, Tex., upon a warrant; and if the deceased, J. G. Spurlock, being the sheriff, and L. W. Nichols being the deputy sheriff of said county, were informed by any credible person of such violation of the law, if any, by defendant, it became their duty to arrest defendant for such violation of the law with a warrant, and, if the officers were informed that the defendant had unlawfully carried a pistol, they were authorized by law to procure a warrant for the arrest of the defendant for such offense, and if they did procure a warrant from the justice of the peace of precinct No. 1 of Throckmorton county, Tex., it was their duty under the law to execute the warrant by making the arrest of the defendant, and they were permitted by law to arm themselves for the purpose of overcoming such resistance, if any, as may be offered them by the defendant, or any other person on his behalf, and were further authorized by law to use all reasonable means to effect the arrest. The officers were not authorized by law, however, to use any greater force than was necessary to secure the arrest and detention of the defendant; and what force was necessary to secure the arrest and detention of the defendant is a question of fact, to be determined by the jury from all of the facts and circumstances in evidence in this case."

The criticism of this charge, that it is upon the weight of the evidence, is not justified. This was but a statement of a proposition of law if the jury found a given state of facts. It is also criticised on the ground that there was no evidence in the record that appellant was carrying a pistol on or about his person in the feed store, and presented an issue not made by the testimony. The evidence of Charlie Jones is that, when he and appellant were having their trouble, appellant asked Overcash, "Where is my pistol?" and then went and got it and fired it. We think this sufficient to authorize the court to charge as he did, but, if in error in this, the undisputed facts show that Charlie Jones had filed a complaint against appellant charging him with carrying a pistol at that time, that a warrant was issued and delivered to the deceased sheriff for execution, and he had it in his possession when killed. The evidence would also tend strongly to show that appellant was aware that the officers were coming to arrest him on account of his trouble with Jones. It shows conclusively...