Cunningham v. State

• Decision Date: 21 May 1924
• Docket Number: (No. 8124.)
• Citation: 262 S.W. 491
• Parties: CUNNINGHAM v. STATE.
• Court: Texas Court of Criminal Appeals

Page 491

262 S.W. 491

CUNNINGHAM v. STATE.

(No. 8124.)

Court of Criminal Appeals of Texas.

May 21, 1924.

Rehearing Denied June 18, 1924.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Ed Cunningham was convicted of murder, and he appeals. Affirmed.

Blain & Jones, of Beaumont, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Appellant is under conviction for the murder of John Cronea with an assessed punishment of ten years' confinement in the penitentiary.

Appellant and deceased had been friends for several years, and appellant was a frequent visitor at deceased's home. Deceased and his wife lived in Beaumont. Louise Winslow, deceased's sister, lived with them part of the time. On the day preceding the killing appellant came to the home of deceased, and, according to the testimony of both appellant and Louise Winslow, the drinking of intoxicating liquor was indulged in by all of them, including Mrs. Cronea. Mrs. Cronea denies that she drank, or that any intoxicating liquor was used by any of the party at the time. It is agreed that early the next morning Mrs. Cronea complained of the loss of $17 which had been taken from the pocket of her dress during the night. Her testimony and Louise Winslow's does not accord with that of appellant relative to this incident. The two women say that when Mrs. Cronea complained of the loss of the money appellant said he had it, returned $12, and agreed to repay the other $5; that no hard feelings or disturbance of any kind occurred with reference to the matter; that deceased was perfectly satisfied with the return of the $12 and the promise to repay the balance, and so expressed himself. Appellant's version is that during the preceding night something had been said about whether he had any money; that he had told deceased he was out of funds, and might want to borrow some; that the next morning Louise Winslow was looking through his pockets for a match, pulled out the $12, and called appellant's attention to the fact that he did have some money; appellant denied knowledge of how the money got in his pocket, and requested Louise to give it to him in order that he might return it to Mrs. Cronea; that a quarrel then ensued between deceased and his sister, deceased accusing her of having taken the money; that in the quarrel deceased struck or slapped his sister several times; that appellant remonstrated with him, whereupon deceased told appellant to keep out of the trouble, if not, deceased would shoot him; that appellant told deceased if he would quit abusing his sister he would take her away from the house; that he and Louise did leave, and were gone probably two or three hours. While they were away, both appellant and Louise had another drink, or drinks, of whisky. The killing occurred almost immediately after their return to deceased's home. The evidence of the two women and that of appellant is in sharp conflict as to the facts of the shooting. According to the women, in a few minutes after appellant and Louise returned appellant was seen by Mrs. Cronea passing through the house with deceased's pistol in his hand; that she informed her husband that Cunningham was leaving with his pistol, whereupon deceased told appellant, if he was going away, not to take his (deceased's) pistol, that he might need it that appellant immediately turned and fired at deceased; that deceased ran through the house, and fell in the yard just off the porch. Mrs. Cronea immediately went to a neighbor's to telephone for the officers. Louise testified that, after her brother was shot, she intercepted appellant and put her hands on him in an effort to detain him until the officers could reach the place; that appellant struck her on the head; that the blow stunned her, but she remembered passing on to the gallery and seeing her brother lying in the yard, and that she fell upon the gallery. She was found lying on the gallery with much blood from a wound upon her head. Both Mrs. Cronea and Louise testify positively that there was no fuss or quarrel, either between deceased and his sister or among any of the parties present immediately before the shot was fired; they deny that any one screamed, or that any licks were passed between anybody. Appellant's version of the transaction after the return of himself and Louise is substantially as follows: That as he came into the house he noticed deceased's pistol lying on the dresser, picked it up, and passed through into the back part of the house, intending to hide it; that when Louise came in deceased renewed his quarrel with her, using abusive language; that some licks were struck which he heard, and that Louise screamed; that appellant turned back into the room, and met her in the door with blood streaming from her head; that she asked him not to let deceased strike her again; that deceased was coming towards them, used a vile expression, and said, "I will kill...