Cook v. State

• Decision Date: 29 October 1913
• Citation: 160 S.W. 465
• Parties: COOK v. STATE.
• Court: Texas Court of Criminal Appeals

160 S.W. 465

COOK v. STATE.

Court of Criminal Appeals of Texas.

October 29, 1913.

Appeal from District Court, Denton County; C. F. Spencer, Judge.

Claude Cook was convicted of second degree murder, and appealed. Reversed and remanded.

Owsley & Owsley, of Denton, for appellant. G. H. Culp, of Gainesville, H. R. Wilson, Co. Atty., and F. M. Bottorff, Asst. Co. Atty., both of Denton, and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 99 years' confinement in the state penitentiary, from which judgment he prosecutes this appeal.

The state proved that appellant entertained animosity towards deceased, Mr. Hope; that during the month preceding the killing appellant was seen in an adjoining pasture and near the Hope farm, sitting around with a gun; that on the day of the homicide he was talking about his wife and child leaving him, and it is apparent he blamed Mr. Hope for the separation. He left Mr. Childs' place, going in the direction of the Hope farm, taking a gun with him; he was seen coming from the direction of and near the Hope farm just before the deceased's body was discovered. These may be said to be some of the circumstances pointing to appellant as the party who killed Mr. Hope, outside of his confession. Mr. Hope was shot in the right side; the shot ranged upward, and was embedded near the left nipple. There is no positive testimony that appellant fired the shot outside of his confession, but the above circumstances would tend strongly to show his guilt, although two other men are shown to have been in the wheat field not a great distance from the body. These two men did not testify on the trial of the case. However, Mr. Childs testified that he lived about a mile south of the Hope farm, and appellant worked for him that morning; that after dinner appellant left, carrying his gun, and went in the direction of the Hope farm; that some time after this he met appellant about halfway between his farm and the Hope farm, and appellant said, "`It's all over.' I said, `What is all over?' He said, `I shot him.' I says, `Did you kill him?' he said, `I don't know,' and I said, `Didn't you say anything to him?' He said, `Yes.' He said, `I asked him where Lou and Don was and he addressed me with his left hand (indicating extending left hand before him and shaking same), and he put his right hand behind him as if to draw a weapon, and then I shot him.' I said, `I done heard it,' and he said `What did you hear?' and I told him that I heard somebody seen him shoot him off the binder, and he said, `It's a damn lie; nobody didn't see me.'" On cross-examination the witness said: "He did tell me that it was all over, and that he called to talk to old man Hope about Lou and Don, and that when he was talking to him (Hope) he (Cook) had his gun right down by his side. As to whether he didn't say that old man Hope started to curse and said, `You God damn son of a bitch, I will kill you,' will say that he didn't use any cuss words to me. As to whether he didn't say that Hope threw one hand out like that (indicating extending hand), and went for a gun with the other—the right—will say he said he addressed him with his left hand, and went for a gun with his right hand, and he said that he had his gun by his side, and that he then shot him. He didn't relate the conversation between them any more than I have related. When I met him there he told me that he was going to the sheriff's office to surrender. As to whether he was excited and talked abruptly, will say I didn't see much change about him. As to whether he didn't go into details about anything, will say no more than I have stated. The only cuss words that were used there— I had misunderstood the man that told me, and I thought he said that they had seen him shoot him off the binder, and when I told him he said that it was a damn lie, and that was the only cuss word used; it was in reply to me saying that somebody said that they saw him shoot him off the binder; it was my mistake. He said it was a damn lie; that nobody saw him, and he told me that at the time he did shoot him, he was pointing at him with his left hand, and going for the pistol with the other, and that is what he shot him for."

The court refused a charge presenting the issue of self-defense, and also refused a charge instructing the jury that if they believed that appellant made the statements to Cook, then the whole of the admissions or confessions are to be taken together, and the state is bound by them, unless they are shown by the evidence to be untrue.

State's counsel insist that the court committed no error in refusing to give either or both of the special charges, and we are cited to the case of Powdrill v. State, 155 S. W. 237, as sustaining that contention. In the Powdrill Case the court gave a full and fair charge on self-defense, and, having done so, it was held that the issue was sufficiently presented, as the jury could not have found that appellant did not act in self-defense without finding that the statement made was not true. Again, the statement in the Powdrill Case was held to be res gestæ, and consequently the events speaking, and not a confession, and for this reason it was held that the charge on self-defense was the appropriate and proper charge, and no charge was necessary, instructing it was incumbent on the state to prove the statement untrue. In this case the court did not charge on self-defense, nor did he charge that, the state having introduced the confession, it was incumbent on it to prove the exculpatory portion thereof false. Had the court given either of these charges, we would be inclined to hold that no error was presented, for the issue would have been submitted to the jury.

In Jones v. State, 29 Tex. App. 21, 13 S. W. 990, 25 Am. St. Rep. 715, this court said: "We are of the opinion, however, that in all cases where admissions or confessions of a defendant are admitted in evidence against him, and such admissions or confessions contain exculpatory or mitigating statements, it would be proper and just to the defendant to instruct the jury" that the whole of the admissions are to be taken together, and the state is bound by them unless they are shown by the evidence to be untrue. Of course, the falsity thereof need not be shown by positive testimony, but may be shown to be so by circumstances, as well as any other fact, if the circumstances are of that force and cogency to cause the jury to believe the exculpatory part of the statement to be false beyond a reasonable doubt.

In the Pharr Case, 7 Tex. App. 472, under the facts in that case it was held that this character of charge should have been given, and some have construed that case to hold that such a charge must always be given when the state introduces a confession of a defendant which also contains exculpatory statements, but such has never been the rule in this court.

The extent of the holding and the true rule is announced in Slade v. State, 29 Tex....