Condron v. State

• Decision Date: 31 May 1911
• Citation: 138 S.W. 594
• Parties: CONDRON v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 594

CONDRON v. STATE.

Court of Criminal Appeals of Texas.

May 31, 1911.

Rehearing Denied June 21, 1911.

Appeal from District Court, Haskell County; Cullen C. Higgins, Judge.

A. O. Condron was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Cunningham & Oliver, Helton & Murchison, and Ben Reynolds, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for murder alleged to have been committed in Throckmorton county. Upon a change of venue, he was tried at Haskell, Tex., found guilty of murder in the second degree, and his punishment assessed at 30 years' confinement in the state penitentiary.

On the 1st day of last October, appellant was at Overcash's feed store in Throckmorton, and spent the afternoon at the store and wagon yard. He and Overcash, it appears, were drinking. During the afternoon, appellant and Charlie Jones had an altercation, and appellant got a pistol out of a coat hanging on the wall, and while in his hands it was discharged. The state's witnesses contend that appellant shot between Jones' feet to make him jump and dance. Appellant insists that the shot was accidental, and that the pistol was not pointed in the direction of Jones. Jones reported to the officers that appellant was at Overcash's, armed with a pistol, and swore to a complaint before Justice Rogers. Mr. Rogers delivered the warrant to Mr. Spurlock, sheriff of the county. While this was being done, Devall, whose team was at the wagon yard, returned to the store and informed appellant and Overcash that he had seen the officers "stirring about the courthouse," and there must be something doing, when appellant remarked, "You must be next." Sieb Jones says he told appellant that "Charlie Jones was making a hell of a talk about him [appellant], and he would not be surprised if he had him [appellant] arrested, and he advised him to be quiet." Appellant replied "he would take care of himself, and that his boy could take care of the rest of them." About the time these conversations were taking place, Sheriff Spurlock, to whom the writ for appellant's arrest had been delivered, and his deputy, Nichols, were seen to come out of the courthouse and start in the direction of Overcash's store, when appellant remarked, "There comes the G____d d____n sons of bitches now," and he and Overcash left the gallery and went in the store. The testimony for the state shows intense ill will on the part of both Overcash and Condron towards the sheriff, with whom on more than one occasion they had had trouble. Both, it is shown, had made threats. The sheriff had arrested Overcash on two occasions, and at one time the sheriff had drawn his pistol on him, and Overcash was very bitter. Appellant had been compelled to pay a fine, and had said he would not be again arrested, but would "sell out" when it was undertaken. These men were drinking when they would make these threats. When the sheriff and his deputy got near the store (from the state's standpoint), the sheriff told appellant he had a warrant for his arrest, when Overcash said, "Don't come another damn step," and appellant remarked, "By God, get away from here with it." As those remarks were made, the shooting began. The state contends that Overcash used a shotgun and fired the first shot; that appellant used a pistol and fired three or four times. The officers returned the shots, and appellant was shot in the leg. The sheriff was killed by Overcash; no pistol ball striking him. Appellant in his testimony insists he did not fire a shot. He admits that he said, "Yonder comes the sons of bitches," but says he did not recognize the sheriff, but thought it was Charlie Jones returning with the deputy, who was a brother-in-law of Jones. That when he recognized the sheriff, he made no further remarks. That he was never told by the sheriff that he had a warrant for his arrest, but when the sheriff got near the store the sheriff placed his hand on his pistol, and Overcash grabbed his shotgun and stepped towards the door, when he (appellant) said, "My God, men, don't do that." That the sheriff and his deputy began to shoot, when Overcash returned the fire. Appellant says he had no pistol; that he was hit by the first shot, and fell. After he says he was shot down, he got a pistol out of a desk and tried to shoot, but it would not fire. That there was no agreement between him and Overcash to resist the officers, and he took no part in killing Sheriff Spurlock, and that while he was present he did not aid or abet Overcash, but tried to prevent the shooting. He admits making the remarks about the sheriff on different occasions testified to by witnesses, but says he was drinking at the time, and claims that in fact he had nothing against the sheriff.

The testimony would amply support the verdict of the jury and under the evidence for the state the jury was authorized to find that appellant in law was a principal with Overcash and under this theory it would be immaterial who fired the fatal shot. But under our laws appellant had a right to have his theory of the case submitted to the jury. Appellant's contentions were, first, that Overcash was justified in killing Sheriff Spurlock, and, if it was found he aided and abetted him, he would not be guilty of any offense; second, that he did not aid by acts, nor encourage by words, Overcash to kill; in fact, if Overcash was guilty, he (appellant) was not a principal in the killing.

1. Appellant complains of the following paragraph of the court's charge to the jury: "If you believe from the evidence in this case that the defendant did not engage in the shooting, if any, between Spurlock and Nichols, upon the one side, and W. J. Overcash, upon the other, nor participate in the acts of W. J. Overcash as a principal offender, until after the defendant was first fired upon or until he was wounded by said Spurlock or Nichols, and that he procured a weapon and then fired, or attempted to fire, at either or both the said Spurlock and Nichols, he would not be guilty of an offense, and, if you so believe or have a reasonable doubt thereof, you will acquit him." Appellant insists that this was a charge upon the weight of the evidence, and we are inclined to think his contention is correct. It was a question in the case from all the evidence whether Overcash, with whom appellant is alleged to have acted, was an offender; appellant contending that Overcash acted in self-defense and was not guilty of any offense. The evidence showed beyond question that it was the shotgun, fired by Overcash, that killed Spurlock. Appellant would not be guilty, under any phase of the case, unless Overcash was guilty under the evidence of some grade of homicide.

While the trial court may have concluded the evidence showed that Overcash was guilty of an offense, yet the judge cannot so assume in his charge under our law. If the evidence raises the issue, without reference to its strength or weakness, it must be submitted to the jury for their determination, and it was error for the court in this paragraph to assume that...