Davis v. State
| Decision Date | 12 January 1927 |
| Docket Number | (No. 10263.) |
| Citation | 296 S.W. 895 |
| Parties | DAVIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Foard County; Robert Cole, Judge.
Owen Davis, alias C. E. Strickland, was convicted of murder, and he appeals. Reversed and remanded.
J. Ross Bell, of Paducah, for appellant.
Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.
The appellant was convicted in the district court of Foard county of the offense of murder, and his punishment assessed at a term of 20 years in the penitentiary.
For a statement of facts in this case, see the opinion in cause No. 10307, this day handed down by this court, same being styled Hugh Davis v. State, 296 S. W. 593.
Appellant, by his bill of exceptions No. 2, complains of the action of the trial court in refusing to grant a continuance. We are unable to agree with appellant in his contention that the case should be continued, for the reason that the bill itself shows that immediately after the appellant was indicted, to wit on the 16th day of February, A. D. 1926, he made application for a subpœna to issue for the witnesses, which subpœna was on the 17th day of February in due course of mail forwarded to the sheriff of Tarrant county, Tex. The bill further shows that the subpœnas for the witnesses had been returned into court with the following notation of return thereon:
There is nothing in the bill showing the day of the return, and the record is silent as to any additional process being issued or any further efforts made to procure the attendance of said witnesses.
The appellant's bill of exceptions No. 3 complains of the action of the trial court in not admitting a certified copy of a judgment of conviction against deceased showing that he was convicted of robbery in Ford county, Kan. We are unable to agree with appellant in his contention. For a discussion of this question, see the opinion in cause No. 10307, Hugh Davis v. State, 296 S. W. 593, same being a companion case with the instant case, this day handed down.
We have examined the other questions raised by appellant and find that they present no error.
The facts amply support the verdict of the jury. There being no errors in the record, the judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.
On Motion for Rehearing.
In this case appellant swore that he and his brothers, Hugh and Jess, gambled with witness Smith and deceased just before the homicide; that the deceased lost about $25 to Jess and went broke; that Smith lost his money to appellant; that at this juncture Smith and deceased claimed it was a crooked deal and Smith grabbed the money won by appellant; that thereupon appellant and Jess had a fight with Smith and recovered from him the money he had grabbed; that, while this fight was in progress, Hugh Davis held a gun on deceased and made him stay out of the fight; that, about the time appellant got his money back from Smith, deceased was standing near by holding the money he had taken in his right hand; that he changed it to his left, and said to Hugh Davis, "Why don't you pull the trigger to that empty gun, you G____ d____ s____n of a b____h," and reached back to his right-hand hip pocket, saying "I have got a gun that is loaded." At this juncture he said Smith jumped over the bed and the gun fired. Deceased fell across a trunk and a six-shooter fell out of his pocket. Appellant said that Jess Davis informed him presently that he had killed deceased.
It was not claimed that appellant fired the shot that did the killing. It was admitted that Jess Davis did. The testimony of appellant...
To continue reading
Request your trial
-
State v. Peel
...81, 193 S.W. 671, 672; 29 C.J. 1072, § 44; 40 C.J.S. Homicide, § 9; Harper v. State, 83 Misc. 402, 35 So. 572; Davis v. State, 107 Tex.Cr.R. 315, 296 S.W. 895, 896. In State v. Leeper, 199 Iowa 432, 442, 443, 200 N.W. 732, 736, the defendant was tried for aiding and abetting Mrs. Wertz to c......
-
State v. Gadwood
...that the evidence required the giving of an instruction upon the subject of circumstantial evidence. Tyler v. State, 53 S.W.2d 64; Davis v. State, 296 S.W. 895; Henderson v. State, 48 S.W.2d 271; Duke State, 36 S.W.2d 732; Anderson v. State, 213 S.W. 639; Cain v. State, 146 S.E. 340; Tipton......
-
State v. Wilson
... ... perpetrator of the crime acts in self-defense, one who aids ... and abets him is not criminally responsible. 40 C.J.S ... Homicide, p. 838, § 9, subsec. b; 26 Am.Jur. 202, section 63; ... 14 Am.Jur. 832, section 93; Kelley v. State, 79 Fla. 182, 83 ... So. 909, 16 A.L.R. 1465; Davis v. State, 107 Tex.Cr.R. 315, ... 296 S.W. 895, 896; Logan v. Com., 174 Ky. 80, 191 S.W. 676, ... 679. See also State v. Leeper, 199 Iowa 432, 442, 443, 200 ... N.W. 732 ... IV ... Defendant offered to prove by different witnesses that the ... general reputation of deceased ... ...
-
State v. Wilson
... ... See State v. Clarence Wilson, ... supra, 17 N.W.2d 138, 142 and authorities cited; State v ... Phillips, 24 Mo. 475; Pizana v. State, 81 Tex.Cr.R. 81, 193 ... S.W. 671, 672; 29 C.J. 1072, § 44; 40 C.J.S., Homicide, § 9; ... Harper v. State, 83 Miss. 402, 35 So. 572; Davis v. State, ... 107 Tex.Cr.R. 315, 296 S.W. 895, 896. In State v. Leeper, 199 ... Iowa 432, 442, 443, 200 N.W. 732, 736, the defendant was ... tried for aiding and abetting Mrs. Wertz to commit the ... murder. In reversing a judgment of conviction, the court ... said: 'She testified that she ... ...