Appeal from District Court, Hill County; W. C. Wear, Judge.
BROOKS, J.
Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary.
The following is a substantial statement of the facts, as set forth in the state's brief, and embraces all the essential features of the evidence adduced on the trial. "On October 24, 1905, and for more than a year prior thereto, deceased, Terrell Calloway, was, and had been, acting as a policeman in the town of Mt. Calm, under and by virtue of an appointment from the duly constituted authorities of the town. Defendant, Jack Early, and Harmie Horn were friends and companions. During the afternoon of the day of the difficulty, both defendant and Horn were in the town of Mt. Calm, as also was deceased. Mt. Calm is a very small town, and Axtell in McLennan county, is about 10 miles therefrom—at which place there is a saloon. These towns are connected by a railroad, and the schedule of the trains was such that a party could leave Mt. Calm, go to Axtell, stay an hour there, and return to Mt. Calm on the north-bound train. On the night of the killing the train going from Mt. Calm to Axtell was due to arrive in Mt. Calm about 6:08 p. m. but was about an hour late. The depot is situated only a short distance, perhaps 50 or 75 yards, from Pryor's livery stable. Before the train left Mt. Calm for Axtell, deceased procured a two-horse buggy from the livery stable and drove out of town to attend to some business. In a short time after deceased drove away from the livery stable, defendant and Harmie Horn, in company with several other parties boarded the train at Mt. Calm and went to Axtell. The record shows they remained in Axtell about one hour, and when they reached Axtell they went to a saloon and remained there during the entire time. During that time Harmie Horn took at least one drink of whisky and a bottle of beer. The same party returned to Mt. Calm on the train—Harmie Horn bringing a quart of whisky, and each of the party doing likewise; one having as many as eight quarts. Returning to Mt. Calm on the train the party drank a bottle of wine—Horn being one of the number. When they reached Mt. Calm the entire party, including defendant and Horn, repaired to Pryor's livery stable. At this time deceased had not returned from his drive to the country. Horn and Early reached the livery stable about 10:30 o'clock. They went in the office, and some of the whisky was opened and two bottles were passed around among the crowd, and Horn was seen to take several drinks. The undisputed testimony shows Horn was considerably under the influence of liquor when he first came to the stable, and that after he came he took several more drinks of whisky. The various members of the party at the stable left at different times, until there was no one there except appellant, Harmie Horn, and Will Harriss (an employé of the stable who slept in the office). Harriss did not go to Axtell. From the time appellant and Horn returned from Axtell until they started to leave, one hour elapsed. During that hour appellant had gone out on a drive with some negro women, and when he returned to the stable only Harmie Horn and Harriss were there. Horn and Early continued to stay at the stable for some time after Early had returned from his drive with the women. At this time, according to the undisputed testimony, Horn was very drunk. Early was boarding at the house of Mat Steddum, some 300 yards east of the livery stable. Early invited Horn to go with him to Mat Steddum's house and spend the night. A gasoline lantern was hanging in the middle of the barn, the light shining full into the street. Appellant and Horn started to leave the barn about 11:30 o'clock. Alongside of the barn and adjoining it is a buggy shed. As Horn and Early emerged from the door of the livery stable, Horn staggered and fell—in full glare of the light hanging in the door, and was so drunk it required two or three minutes for Early to assist him to his feet. They then turned north and walked in the direction of the northwest corner of the buggy shed, which corner was ____ feet from the center of livery barn door. They made no stop between the barn door and the corner of the buggy shed. By the time they reached the corner of the buggy shed, deceased had driven up in front of the barn door and had gotten out of the buggy on the north side, which was next to Early and Horn. At this time, Early and Horn were in sight of Calloway and Harriss—the last two being in the light when Harriss received the team from deceased. Deceased assisted Harriss in taking the team loose from the buggy. Harriss led the horses into the barn. Horn and Early then turned east around the corner of the buggy shed, and Calloway walked north from the barn door toward the corner of the buggy shed, where Horn and Early had been. Harriss carried the team on in the barn; took the harness off and put the horses in the stalls; went into the office; immediately undressed and went to bed. While Harriss was putting the horses away, he heard some loud laughing in the direction the parties had gone, but paid no
attention to it. After he had gone to bed he was aroused by appellant calling him by name at the front door of the barn. The lantern at the barn door was still burning. He lighted a light in the office and was dressing himself, when appellant walked in the office with the pistol of deceased in his hand, and told Harriss that Calloway was trying to arrest Horn and Horn had refused to be arrested and the fight took place. Appellant said, `Will here is Terrell's pistol, where would be a good place to put it?' Appellant laid the pistol on the desk in the office, and said he had picked it up off the ground. He said that when Calloway tried to arrest Horn, Horn refused to be arrested, and the fight took place, and Horn had beat all the face off of Calloway. Harriss then accompanied appellant out to a vacant lot back of the livery stable, and back of the livery stable lot, and there found deceased lying flat of his back, and Harmie Horn leaning over him. Early and Harriss had brought with them from the livery stable a lantern which they gave to Harmie Horn. Early and Harriss picked up the body of deceased and carried it into the livery stable, Horn carrying the lantern in front of them. When they reached the stable, Harriss went to the telephone and called for Doctor Barrett. While he was at the telephone, defendant and Horn held a conference. Harriss did not understand what they were talking about, except he heard one of them say something about getting a horse at the stable. In a short time after Harriss talked over the telephone, Will Steddum (the telephone operator) came to the stable, and soon afterwards Dr. Barrett, John Stirman, Major Nichols, Dr. Ranney, and others came. After Will Steddum came, appellant said that Calloway had attempted to arrest Horn and Horn resisted and then the fight took place, and that Horn had refused to be arrested. He said that he did not try to separate them; that he saw a knife flashing around and a pistol. While Steddum and Harriss were trying to minister to the wants of the dying man, appellant and Horn, after conferring together, took their departure. Appellant went to Mat Steddum's house, borrowed a horse, and was not seen any more for an hour or two, when the city marshal met him in the road a mile from Mt. Calm riding a horse in a gallop. And Harmie Horn was not seen until the following morning when he was arrested some four or five miles from Mt. Calm. Situated some 25 or 30 steps north of the scene of the difficulty is a gin office which was occupied on the night of the difficulty by the witness A. J. Nelson as a sleeping apartment. Nelson had retired and gone to sleep, and was aroused by a noise on the outside. The first thing he heard was some one saying, `That will do. Let him up.' He then looked out of his window, and saw the bulk of men out some distance from the office, one standing up and another in a low position. The man standing up was moving about a little and he could tell that it was a man. The other object in the low position he could not tell whether it was one or two men at that time. The man standing up commenced calling, `Will Harris,' and left and went in the direction of the barn, and after he had gone he heard Horn...
