Duke v. State, 13973.

• Decision Date: 18 March 1931
• Docket Number: No. 13973.,13973.
• Citation: 36 S.W.2d 732
• Parties: DUKE v. STATE.
• Court: Texas Court of Criminal Appeals

36 S.W.2d 732

DUKE v. STATE.

No. 13973.

Court of Criminal Appeals of Texas.

March 18, 1931.

Commissioners' Decision.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Roma Duke was convicted of murder, and he appeals.

Reversed and remanded.

A. E. Masterson, of Angleton, for appellant.

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

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for ten years.

Appellant and Sam Stapleton were jointly indicted for the murder of W. E. Holmes. A severance being had, Stapleton was first placed on trial, and convicted. On appeal to this court the judgment of conviction was affirmed. See Stapleton v. State, 113 Tex. Cr. R. 543, 22 S.W.(2d) 939.

Several hours before the homicide, appellant, Sam Stapleton, and the sons of Stapleton had had some trouble with deceased. According to the testimony of state's witnesses, deceased and some of his friends were in a negro house. Appellant and his companions entered the house, approached deceased and his friends, and cursed them. Deceased struck appellant and Sam Stapleton with his fist, whereupon appellant and his companions left the house. Several hours later deceased and his associates started back to the penitentiary farm where they were employed as guards. They met appellant, Sam Stapleton, and Stapleton's sons in the road. Witnesses for the state testified that Sam Stapleton shot deceased with a shotgun. According to the state's version, deceased was unarmed. The state's testimony was further to the effect that appellant said to deceased at the time of the difficulty in the negro house: "I will see you again." Further, according to the version of the state, when the parties met on the road several hours after the difficulty in the negro house, deceased had gotten out of the car in which he was riding and walked up the road. State's witness Woodley, who was in the car with deceased, testified, in substance, that appellant walked up to the car and asked him: "Ain't you the s____s of b____s that whipped us up over there?" The witness having replied in the negative, appellant said: "Yes, I believe you are the G____ d____d s____ of a b____ that whipped up on us out there." The witness again replied in the negative, and appellant said, according to the testimony of the witness: "Where is the other two fellows that were in there with you?" The witness said: "They ain't nobody in here with me." Appellant replied: "You are a G____ d____ liar. There was while age." The witness then told appellant that the parties had gotten out and gone up the road. In answer to this, appellant said: "I believe you are the G____ d____ b____d that whipped us up." The witness again denied the charge, and appellant then told him that he apologized to him if he was not the man. The parties then shook hands. About the time this conversation between appellant and the witness ended, deceased came up to the car. Sam Stapleton, who was standing nearby with a shotgun, raised the gun as some one said: "There is one of the s____s of b____s now." Stapleton fired three shots at deceased. Appellant had a shotgun in his car, but had no arms on his person. No witness for the state was able to testify that appellant said anything to Stapleton or to deceased. It appears that, at the time Stapleton fired upon deceased, appellant was on the...