Dobbs v. State

• Decision Date: 06 March 1907
• Parties: DOBBS v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 946

DOBBS v. STATE.

Court of Criminal Appeals of Texas.

March 6, 1907.

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

Milton Dobbs was convicted of murder, and appeals. Reversed and remanded.

Sam D. Snodgrass and Reynolds & Reynolds, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and given 20 years in the penitentiary.

The theory of the state was a conspiracy existed between M. B. Dobbs and Milton Dobbs and A. B. Dobbs, or between M. B. Dobbs and appellant; M. B. Dobbs being the father of appellant, and A. B. Dobbs the grandfather. There had been some trouble between the Dobbs family on one side and Mitcham on the other; Mitcham being a brother-in-law of M. B. Dobbs and son-in-law of A. B. Dobbs. This trouble arose out of supposed ill treatment of A. B. Dobbs, the father of M. B. Dobbs, and Mrs. Mitcham, wife of deceased, on the part of the deceased Mitcham and his wife. The state undertook to show by circumstances that M. B. Dobbs and appellant sided with A. B. Dobbs, father and grandfather, in his troubles with Mitcham and wife, and by reason of these facts had determined to kill deceased. M. B. Dobbs and appellant (his son), a boy 20 years of age, living with his father, lived about a quarter of a mile from the residence of deceased. There was a law suit pending between A. B. Dobbs and the deceased, growing out of a breach of contract between them. We deem it unnecessary to go into a detailed statement of all those matters. On the day of the homicide, M. B. Dobbs and four of his children, three girls and appellant, went to the town of Pittsburg, a few miles from his residence, returning late in the evening. About 4 o'clock, and before the return of M. B. Dobbs and his children home, the deceased Mitcham went to the town of Leesburg. Upon return of Dobbs and his children home, he requested his wife to prepare supper in order that he and appellant might go to Cypress creek fishing that night. It seems from the testimony that Dobbs and his son were in the habit of going on Saturday evenings to this creek on fishing excursions, spending the night, carrying their guns with them. While in the town of Pittsburg in the morning, appellant was in a hardware establishment and bought several articles, among other things, seven cartridges loaded with buckshot. The various articles cost him the sum of 65 cents. About sunset appellant and his father started to Cypress creek for the purpose of fishing, and, when a short distance from their residence, they met deceased returning from Leesburg. Loud talking was heard, and one shot fired, which is shown to have been fired by appellant, resulting in the death of Mitcham. The theory of the state was that the meeting was intentional; that of the defendant, it was accidental. The state introduced the witness Duke, over objection of appellant, and proved the fact that M. B. Dobbs, in the absence of appellant, bought the seven cartridges above mentioned. Nothing was said by Dobbs at the time as to his purpose in buying them. The state undertook to show that it was with one of these shells that the deceased was killed. The evidence on this point, however, is not at all satisfactory. The physician who attended the deceased cut into his body, but failed to find any shot. Appellant, when arrested the next day, was found in possession of three shells such as described by the witness Duke. Appellant objected to the testimony of Duke, because he was in no wise connected with the buying of the shells; and, further, that the state failed to show that there was a conspiracy pending between appellant and his father to kill deceased. While the evidence is not satisfactory, still the admission of this testimony may have been warranted to be considered along with the other facts in the case. Different acts and words of Dobbs were introduced in evidence, which we suppose were upon the same theory as that which actuated the court in permitting the introduction of Duke's testimony in regard to the shells.

The court charged the jury, in reference to these shells, as follows: "If you believe from the evidence that M. B. Dobbs bought from Jim Duke some gun shells or cartridges loaded with powder and buckshot for the purpose of shooting and killing J. T. Mitcham, and if you further believe from the evidence that M. B. Dobbs and the defendant conspired together and agreed between themselves to take the life of J. T. Mitcham, then I charge you that, in considering your verdict in this case, you will consider the evidence of Jim Duke; otherwise you will wholly disregard it and give it no consideration whatever." Various objections were urged to this charge. We believe this was a charge directly on the weight of the evidence. It indicated to the jury the court's belief or opinion that Dobbs had bought the cartridges for the purpose of shooting and killing Mitcham. No witness testified in regard to these shells, except Duke, and he nowhere intimated in his testimony that defendant bought them for the purpose of killing Mitcham. In fact, his testimony is expressly to the effect that Dobbs said nothing in regard to the shells further than to purchase them. There was not a word said on the part of Dobbs as to why he bought the shells. He simply bought them, paid for them, and went away. This fact was singled out of all the facts by the court, and this charge given with reference to this one particular thing, and, in our judgment, in such a manner as to indicate to the jury that the court believed they were purchased for the purpose of killing or shooting the deceased. It has been so long the rule in Texas that the court shall not charge upon the weight of evidence that it would seem like it is a work of supererogation to discuss it. The statute (article 715, Code Cr. Proc. 1895) expressly prohibits it, and there are a great number of authorities in this state construing the statute and holding that the court must not intimate to the jury his view or conclusion as to the weight of the facts. The judge is prohibited from conveying to the jury by any word in the charge, or in any other manner, what his impressions are as to any particular part of the testimony. See Butler v. State, 3 Tex. App. 48; Brown v. State, 3 Tex. App. 294; Fisher v. State, 4 Tex. App. 181; Stuckey v. State, 7 Tex. App. 174; Pharr v. State, 7 Tex. App. 472; Babb v. State, 8 Tex. App. 173; Harrison v. State, 8 Tex. App. 183; Hodde v. State, 8 Tex. App. 382; Renfro v. State, 9 Tex. App. 229; Harrison v. State, 9 Tex. App. 407; Stephens v. State, 10 Tex. App. 120; McWhorter v. State, 11 Tex. App. 584; Maddox v. State, 12 Tex. App. 429; Walker v. State, 13 Tex. App. 618; Wyers v. State, 22 Tex. App. 258, 2 S. W. 722; Spears v. State, 24 Tex. App. 537, 7 S. W. 245; Parrish v. State, 45 Tex. 52; Walters v. State, 37 Tex. Cr. R. 388, 35 S. W. 652; Ayers v. State, 37 Tex. Cr. R. 1, 38 S. W. 792; Berry v. State, 37 Tex. Cr. R. 44, 38 S. W. 812; Forbes v. State, 35 Tex. Cr. R. 24, 29 S. W. 784; James v. State, 32 Tex. Cr. R. 473, 24 S. W. 297; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; and, for a great many other authorities, see White's...