Crippen v. State

• Decision Date: 08 November 1916
• Docket Number: (No. 4196.)
• Citation: 189 S.W. 496
• Parties: CRIPPEN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 496

189 S.W. 496

CRIPPEN v. STATE.

(No. 4196.)

Court of Criminal Appeals of Texas.

November 8, 1916.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Wesley Crippen was convicted of aggravated assault, and appeals. Reversed and remanded.

Williams & Williams and Edgar Harold, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Under an indictment and trial for an assault to murder J. R. Spillers, a police officer of Waco, appellant was convicted of an aggravated assault, and his punishment assessed at two years in the county jail.

The testimony on behalf of the state by a preponderance would show a most aggravated case of an assault with intent to murder, an attempted assassination, and would show such a state of fact as to exclude manslaughter if Spillers had been killed. On the other hand, by his own testimony, supported by some other, appellant showed such a state of fact as to show that if he had succeeded in killing Spillers, his offense would have been no higher than that of manslaughter, thereby raising the issue of aggravated assault. On this point the jury acquitted him of assault to murder, and found him guilty of aggravated assault, as stated. Appellant introduced testimony of threats against him by Spillers, both communicated and uncommunicated. In his testimony, Spillers denied all such threats, testifying that he made none of them. Appellant by practically his testimony alone raised the issue of self-defense from apparent danger. The testimony of the state by Spillers and other eyewitnesses would exclude self-defense.

Appellant assigns a large number of claimed errors — a good many to the admission of testimony, others, to various paragraphs of the court's charge, and still others to the court's refusal to give some of his special charges. As most of his refused charges and some of his complaints as to the court's charge were solely with reference to the question of an assault with intent to murder, and as he was acquitted of that offense, they pass out and are not discussed.

The shooting occurred on the night of July 28, 1915. In the claimed discharge of his official duties Spillers arrested appellant on October 1, 1914, for a minor offense against the city ordinances of Waco. Again, early in December following, he again arrested him for the violation of another city ordinance. The arrest in both instances was made without Spillers having a warrant for appellant's arrest at the time. Appellant was tried the next day after his first arrest in the city court and acquitted. He was tried under the second arrest on December 8, 1914, and convicted. He appealed that case to the county court. The charge in that case was vagrancy. After the said appeal, twice before July 28, 1915, appellant forfeited his bond. On July 28th, when his case was again called, at which time it was set for trial, he failed to appear, and his bond was again forfeited. Spillers was a witness against him in that case, and was present when this last forfeiture was taken. The assistant county attorney in charge of that prosecution and other officers in the sheriff's department at the time instructed Spillers that if he could find appellant, to again arrest him so as to have him present the next morning for trial. No warrant for his arrest was issued, and Spillers had none that night when he again arrested him in compliance with his instructions from said officers. He found him that night in the reservation district of Waco and arrested him. Appellant did not resist arrest at that time, nor did he attempt to escape while arrested and in custody. When arrested on this occasion, appellant by his own testimony abused and cursed Spillers in the most outrageous way, and offered and wanted to fight him, if Spillers would take off his pistol. Spillers called for the officer in charge of the hoodlum wagon for the purpose of transferring him to the jail and confining him therein. The officer with this wagon soon appeared. Appellant got on it and with that officer went to jail. Spillers did not go with them, and had nothing more to do with the matter. Within a very few minutes, three or four he says, he was ordered released by a deputy sheriff, and was released from jail and from this arrest. Appellant is shown then to have, in effect, stated he was going to arm himself and kill Spillers. He proceeded to hunt up a shotgun and shells with large shot, loaded his gun, and went to hunt Spillers to kill him, found him, shot him three times, the three loads taking effect in Spillers' body, wounding him most dangerously, shot at him a fourth time, but missed him, and then fled.

Appellant contended, and so testified and introduced other testimony somewhat tending to support him, to the effect that each of said arrests by Spillers of him, and especially on the night of July 28th, was because of Spillers' malice towards him, and done to humiliate, embarrass, discredit, punish, and impose upon him, and that he was using, and had used, his official position as a policeman to accomplish these purposes and to run over and overawe him; that Spillers' said actions and conduct were not actuated by any desire on his part to discharge his duties as a policeman, but were solely for the purposes stated. With these issues thus made by appellant, we think all the testimony of Spillers himself, and of the various officers of the city and county, to the effect that all arrests by the police officers of said city were made without warrants, and that the police officers were so instructed to make arrests without warrant by their superior officers, and that Spillers was instructed by the assistant county attorney and the other officials to arrest appellant on this occasion — in other words, all such testimony as would show, or tend to show, the reverse of appellant's contention as just stated, and that Spillers was acting in good faith in the discharge of his duties as a policeman — was admissible. This disposes of a large number of appellant's bills of exceptions to the admission of testimony on these lines. The court properly admitted said testimony on the question of the motive of Spillers in making said arrest, and restricted the jury to the consideration thereof for that purpose alone.

If appellant had resisted said arrest at the time it was made, or had attempted to relieve himself of arrest after being arrested, and at that time had shot Spillers, his rights would have been very different from what they were under the unquestioned facts shown by this record. He did not then shoot...