Dobbs v. State

• Decision Date: 18 November 1908
• Citation: 113 S.W. 923
• Parties: DOBBS v. STATE.
• Court: Texas Court of Criminal Appeals

113 S.W. 923

DOBBS v. STATE.

Court of Criminal Appeals of Texas.

November 18, 1908.

Appeal from District Court, Titus County; P. A. Turner, Judge.

M. B. Dobbs was convicted of homicide, and he appeals. Affirmed.

Ralston & Ward and Sam D. Snodgrass, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is the second appeal in this case. A report of the first appeal will be found in 51 Tex. Cr. R. 629, 103 S. W. 918. The companion case of Milton Dobbs is reported in 51 Tex. Cr. R. 113, 100 S. W. 946. A full statement of the case and the facts of the killing are deemed unnecessary. The record is quite voluminous, and many reasons are urged why the case should be reversed.

1. The testimony shows that the deceased was killed on a public road leading from Pittsburg to Mt. Vernon, a short distance from appellant's home. It is claimed by the state that appellant and Milton Dobbs knew that the deceased would pass near where he was killed, and that they met him there for the purpose of injuring or killing him. Appellant's theory was that the meeting was accidental, and that immediately on their meeting the deceased assaulted appellant; that they engaged in a scuffle over a shotgun, which was broken, deceased retaining the barrel, and was in the act of striking appellant with it when he was shot by his son to prevent death or serious injury to appellant, his father, as shown by the testimony of appellant's wife. There is much testimony in the record tending to show a very bad state of feeling between all the parties. Numerous threats are shown in the evidence by appellant to take the life of or harm the deceased. There was also evidence of threats on the part of deceased to kill appellant. Among other things, one Buford Davis testified that about a year before the killing deceased said to him that he was laying for appellant, waiting for a chance to get to kill him; that he said he had rather kill him than to kill a sorry dog; that he had his gun loaded for him for four or five years. Appellant's wife testifies to a threat uttered at the time of and in connection with the killing. There was no evidence that the threat testified to by Davis or any one else had ever been communicated to appellant. The evidence, if true, makes it clear, however, that he must have heard the statement and declaration of deceased at the time of the homicide. We held in the case of Hancock v. State, 47 Tex. Cr. R. 3, 83 S. W. 696, that it was not necessary to charge on the law of threats, when the only threats were made during the progress of the difficulty directly to defendant. It was held in the case of Alexander v. State, 25 Tex. App. 260, 7 S. W. 867, 8 Am. St. Rep. 438, that "it is well settled that if a person accused of culpable homicide has been threatened by the deceased with death or serious bodily injury, and such threat, has, prior to the homicide, been communicated to the defendant, and at the time of the homicide the deceased by any act manifested an intention to execute such threat, the defendant would be authorized to act upon appearances in resorting to any means to protect himself, and a killing under such circumstances would be justifiable homicide." This rule, in respect to communicated threats, has often been reaffirmed, and it has so been recently held by us in the cases of Jay v. State, 109 S. W. 131, and Penton v. State, 109 S. W. 937. The rule in respect to communicated and uncommunicated threats, and the difference between them, should be obvious. For instance, in the case of Arnwine v. State, 50 Tex. Cr. R. 254, 96 S. W. 4, it was held, in respect to uncommunicated threats, that the state should not be permitted to show the good character of deceased. Again, in the case last named, it is said: "If communicated threats were not in the case, appellant was ignorant of that fact, and it could not have operated upon his mind as an inducement to do the killing, and his defense under these circumstances was entirely independent of threats." We think, as here presented, there was no occasion for the court to have given in his charge the substance of article 713 of the Penal Code of 1895, as contended for by appellant.

2. On the trial of the case it was proven by the testimony of D. H. Carpenter that shortly after the killing he found two guns in appellant's house, one of which was loaded with new club buckshot shells. It was shown by another witness that appellant had bought from him on the day of the killing seven new club shotgun shells loaded with buckshot. After his arrest the sheriff, Carpenter, found three new club shotgun shells in Milton Dobbs' pocket, and at the time of such discovery Milton Dobbs was confined in jail. This testimony is objected to, and the proposition is made that the acts and conduct of a co-conspirator, done and committed after the completion of the conspiracy and in the absence of the accused, are not admissible in evidence against him. We should have little occasion to differ with counsel as to the general proposition; but it should be remembered in this case that the parties were charged as principals in the killing, and the facts tend to show that the actual shot which killed deceased was fired by Milton Dobbs, and the evidence tends strongly to show, as the jury must have believed, that such killing was in furtherance of a design mutually formed between the parties so to do. It would, therefore, seem to follow that any fact or circumstance which would tend to prove the guilt of Milton Dobbs would be likewise admissible against appellant on this trial. Again, the record shows that no statement or remark or conversation with Milton Dobbs was offered in evidence, but merely the fact of finding the shells in his pocket. This was not the act of a co-conspirator which was being proven. If these shells had been found on the road and near the killing, they would have been admissible. If they had been found in the room occupied by either appellant or Milton Dobbs, they would have been admissible. The fact that they were found in possession of the alleged co-conspirator is a circumstance admissible to show his participation together with appellant in the killing of deceased.

3. It is next objected that the court erred in permitting the cross-examination of appellant's wife, as shown in the record. Mrs. Dobbs had testified on direct examination that when the gun fired she was just north of her house putting up some chickens; that she heard deceased say in a loud voice, "Pap is going to swear lies on me about that land;" that she ran up to where she could see them, and, when she got within 40 or 50 yards from where her husband was, she saw deceased jump out of the buggy and grab her husband's gun; that they scuffled over the gun a while, and it was finally broken, her husband retaining the stock and deceased the barrel of it, and then deceased raised the gun barrel as if to strike, when appellant said, "Milt, don't let him kill me," when the son fired. It appears that the witness was not asked on direct examination whether any one else was present, and was not asked anything about deceased's little boy. On cross-examination, evidently believing that her statement was untrue, and desiring to test the accuracy and substantial truthfulness of it, counsel for the state asked her many questions in respect to the little boy of deceased, who was with him, and developed from her, in substance, that she had not seen the boy. They also asked her in reference to whether deceased was driving a horse or a mule. They also asked her many questions in respect to just where she was when the fatal encounter ensued and her opportunity of seeing the killing. We think all the matters were so inextricably and closely connected with matters testified to on direct examination that her testimony would under any fair rule be admissible. This court has gone quite far enough in limiting the scope of the cross-examination of the wife. We think, however, in this case there can be no doubt that the matters inquired had such relation to the direct testimony of the wife, and were so necessarily important to elucidate the truthfulness of her testimony in chief, and so obviously related thereto, as not to be the subject of substantial complaint. This case is easily distinguishable from the cases of Stewart v. State (Tex. Cr. App.) 106 S. W. 685, ...