Doggett v. State

• Decision Date: 11 December 1935
• Docket Number: No. 17710.,17710.
• Parties: DOGGETT v. STATE.
• Court: Texas Court of Criminal Appeals

93 S.W.2d 399

DOGGETT v. STATE.

No. 17710.

Court of Criminal Appeals of Texas.

December 11, 1935.

Rehearing Granted April 15, 1936.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Clifford Doggett was convicted of murder, and he appeals.

Reversed and remanded.

Frank Sparks, of Eastland, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for murder; punishment, death.

The trial was had in Eastland county, Tex., where Mr. Threet died after having been shot by appellant at a point in Callahan county. The proof shows that after having shot Mr. Threet, appellant took from his person something over $100 in money, and that at a time anterior to the trial of the instant case appellant had been tried in Callahan county for the robbery of Threet, and had been finally convicted for said offense. The briefs and bills of exception raise many interesting questions, the material ones being here adverted to and discussed.

Appellant urges that there is a lack of corroboration of one Van Cleve, a self-confessed accomplice and coactor with appellant at the time and place of the alleged shooting, who testified for the state that on the night of August 14, 1934, he was at the home of appellant in Cisco, Eastland county, Tex., and the latter asked him if he wanted to make some money, and told him that he had a girl who was going to take a man out in the country the next morning and that they could go out and rob him; that he and the girl were going to spend the night at some place. The witness testified that the next morning, on August 15th, at about 7 a. m. appellant came to where witness was, woke him, and the two went to appellant's house, where they breakfasted. While eating appellant said: "There they go." In fifteen or twenty minutes witness and appellant got in the latter's car and went on the Abilene highway west from Cisco. He further testified that appellant's son Earl was at the family home when they left Cisco. In the car in which the two men were was a 30—30 and a 22 caliber rifle. After going west on the highway, the parties turned off south, and presently met a man who was walking; they went through a gap and a mile or more down in a pasture where they parked the car, and on foot walked a mile or so farther to where they came up a ravine, and saw deceased Threet and one Mary Lou Howell on a pallet not far from a tank; some trees were about twenty-five yards from Threet and the woman and between the parties. The witness and appellant went up to these trees, appellant having the 22 rifle and witness the 30—30. They had cloths over their faces for a disguise. When they got to the trees, appellant called to deceased and told him to put up his hands. The deceased and the girl were sitting on a pallet. Deceased said he would not put up his hands, whereupon appellant, holding the 22 rifle in his hand, told deceased if he did not put up his hands he would shoot him, and when deceased replied he would not, appellant shot. Deceased fell back on the pallet. Appellant went to him, and after tying the hands of deceased with a trot line cord, took from the front pants pocket of deceased a coin purse, and from his hip pocket a billfold. Witness said he observed that the head of deceased was bloody and ran away from the scene, but was overtaken by appellant about a mile distant. They went back to the car, a Ford V-8, and in it drove back to Cisco. Appellant told witness he got about $130 from deceased. Both purses were thrown away by appellant before they got to town. They had the rifles in the car, in which witness also observed a handbag or overnight bag, which was later left by appellant at the corner of Avenue D and Thirteenth street in Cisco.

From Cisco Van Cleve said he and appellant went to Rominy, a little town some eleven miles south from Cisco, where they got oil, gas, and a cold drink; after leaving Rominy and before they got to Rising Star, appellant got out of the car and hid the guns referred to; they then went on through Rising Star to Goldthwaite, at which place they arrived about 3 p. m. on the same day. They remained in Goldthwaite several hours getting oil, gas, and whisky and seeing various persons, one of whom named Reeves they carried in the car to some place. Leaving Goldthwaite they then drove back to Cisco, getting there about 9 or 9:30 p. m. They separated, appellant telling witness that he would later divide the money. Witness went to Slaton, where he was arrested on August 19th. After denying any knowledge of the transaction surrounding the robbery or the killing Van Cleve changed his mind and made a confession in line with what we have above said. He took the officers to where he said appellant hid the guns, and there the officers found a 30—30 and a 22 rifle.

The killing was on August 15, 1934. As corroborating evidence and by parties other than the accomplice, it was shown that appellant and the Howell woman, hereafter referred to as Lou for brevity, spent the latter part of the night of August 14th at a tourist camp in Cisco; that about 8 a. m. next morning the woman was seen in a car with Mr. Threet, deceased, going west on the highway from Cisco; later a witness met a car going south from the highway which he said was occupied by Threet and some one, either a child or a girl; still later a man on foot testified that he met Threet and Lou in a car about a mile from Threet's ranch, and just after passing them this witness met appellant in a car accompanied by a man; and that said car went in the same direction Threet and the woman had gone. This witness noticed that the car of appellant appeared to have been in a wreck, and had a mashed hubcap, and various witnesses to the identification of the parties also referred to the appearances of said car. After the killing, at the scene of same a pallet was found; tracks of a woman were in the mud and soft dirt at a nearby tank. The foot of Lou was put in said tracks and fitted, and a spot of mud was observed on the heel of her shoe when she was arrested, and was identified as identical with the mud at the tank. Witnesses at Rominy and Goldthwaite saw appellant and Van Cleve in the Ford V-8 with the mashed hubcap and evidences of a wreck, they being observed at Rominy between 11 and 1 o'clock that day, and at Goldthwaite, which was some 90 miles from Cisco, from 4 to 6 o'clock in the afternoon.

Appellant was arrested a little after dark on August 16th, the day after the killing. His son Earl was with him at the time. Hicks, the arresting officer, took appellant back to Cisco in his car, and Mr. Nordyke, another officer, went back in appellant's car with said son. Appellant's car was taken by the officer to the city hall. Shortly after reaching this place, appellant and his son were observed together; no officer being with them. Earl, the son, was then seen to go out to his father's car and enter same. He was seen standing in the back part of said car. When he left the car he went east toward where an abandoned tractor stood near the railroad track some two blocks from the city hall. The next morning an officer went with Earl to said old tractor where Earl reached under same, pulled out a purse, and gave it to the officer, who took it and its contents to the district attorney, who opened it and took out of same $110 in money of the denomination of 5, 10, and 20 dollar bills. The daughter of deceased testified that the afternoon before the killing she saw her father count $135 in 5, 10, and 20 dollar bills and put all of same in a billfold, which he put in his hip pocket; that he also had several dollars in a coin purse which he had in his front pants pocket.

An autopsy revealed that the deceased was shot in the top of the head, a small hole being found, and in his brain a doctor found a piece of lead about the size of a 22 bullet. A search of appellant's car at the city hall in Cisco after his arrest revealed the presence of a number of 30—30 cartridges and also several 22 cartridges, some of the latter being empty. The guns described were found near the road from Cisco to Goldthwaite not far from Rising Star, at a point where a car had turned out from the road and a man's track went toward some bushes under which the guns were concealed. A woman testified that she picked Lou up on August 15 at a point on the highway some eight miles west of Cisco and brought her into that city. It was shown that Lou lived at apartments not far from where appellant lived. On August 15th, at about 12:30 p. m., a witness testified that she found Lou's suitcase setting inside her door; that she had not seen it there until then. When the suitcase was opened it contained a 25 automatic pistol. Officers testified that shells used in such a pistol had steel bullets. We regard these facts as affording sufficient corroboration of the accomplice. Appellant offered no testimony, except to identify the records pertaining to his former conviction.

Appellant and Van Cleve were, without dispute, shown together and in appellant's car practically all during the day of August 15th. That appellant spent the night with Lou the night before the killing was proved. That Threet with her in his car was followed to his ranch in the early morning of August 15th by appellant and Van Cleve was established. That Threet was there shot and mortally wounded is not questioned. That appellant and Van Cleve, in the same mashed Ford V-8, came from toward Cisco to Rominy eleven miles out, shortly after 11 o'clock that same day, is not denied; that near Rising Star, eight or ten miles from Rominy, one of the occupants of said car hid the two guns, is also established. They were in Goldthwaite, nearly or quite a hundred miles from the scene of the shooting by 3 o'clock on said day. They returned to Cisco where they separated. When arrested the next day, in a compartment of appellant's car were shells fitting both the...