Eggleston v. State

• Decision Date: 23 March 1910
• Citation: 128 S.W. 1105
• Parties: EGGLESTON v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 1105

EGGLESTON v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1910.

On Rehearing, June 8, 1910.

Appeal from District Court, Limestone County; H. B. Daviss, Judge.

A. L. Eggleston was convicted of murder, and he appeals. Affirmed.

James Kimbell and Doyle, Jackson & Harper, for appellant. John A. Mobley, Asst. Atty. Gen., and Marrero Herring, Asst. Co. Atty., for the State.

McCORD, J.

This is an appeal from a conviction for murder in the second degree with a penalty of 35 years. On the 13th day of June, 1909, and on the night of said day one Jake Ross, a negro, was living on the place of one Jackson, as tenant. This place was situated not far from the town of Coolidge in Limestone county. On that night the said Ross gave a "festival," and there had assembled a good many negroes of the neighborhood. The appellant in company with one Jess Goodwin, both white men, and also living on Jackson's place as tenants, Goodwin being a relative of Jackson, appeared at this negro "festival," and were gambling with the negro men. Shortly thereafter the deceased, Woody Clancy, appeared upon the scene in company with another white boy, went into the negro house and bought something to eat from the wife of Ross; and a difficulty ensued between him and the appellant, and resulted in the said Clancy being shot and killed. Appellant who was a married man and some 32 years old, and Goodwin who was a young man some 20 or 21 years of age, were separately indicted for this killing. The deceased, Clancy, was a boy who lived in the neighborhood and was about 20 years of age. The deceased, Clancy, with one Ike Fralick and some other boys, had been at Mr. Barfield's, who lived about a quarter of a mile from where Jake Ross lived, attending a social gathering, when, between 11 and 12 o'clock, the deceased, in company with Fralick and Blunt, left Barfield's, and in going to their homes stopped at Jake Ross.' When the deceased appeared at the place, the appellant and Goodwin stopped gambling with the negroes, and appellant bantered the deceased to play him a game of cards. The deceased remarked that he would play him pitch at anything from 25 cents to $100 a game. The appellant went off, and came back to where the deceased was standing, and told him that he could not find any cards; the deceased replied. "Well, that is all right; I was just joking any way," or words to that effect. (It may be here stated that the deceased and appellant were unacquainted with each other, and if they had ever met before there is no testimony to that effect.) The state's theory of the case—and there was testimony to support it—was that the appellant and Goodwin were ruffied at the appearance of the deceased and the boys that were with him at the place that night, and that they suspected that these boys were there to prevent them from gambling with the negroes or to report on them for gambling. This theory is supported by the statement of one witness who testified that just before the shooting Eggleston said that he (appellant) would go and start those "God damn yaps"; that Goodwin remarked, "You better take this," and handed him a pistol, and also remarked that there were but three loads in it, and if he needed more he had better put them in; that when Eggleston said he was going around there to start the God damn yaps the witness spoke up, and says, "What God damn yaps?" and Goodwin said "That Clancy boy." The witness said: "I think he is all right; he came in the house and told us boys that he would not gamble any more while these white boys were here, if he was us, that they might get us in trouble;" that Goodwin said, "He is the God damn rascal," and about two minutes after this conversation the shooting occurred.

The testimony further disclosed that, after the arrival of the deceased, Blunt and Fralick there were four or five shots fired out back of the corner of the house, but the record fails to disclose who fired those shots. The witness Blunt said that he had started home after the firing of these shots, and that when he got out to the fence which was some 15 feet in front of the house, Goodwin came to him and asked him where he was going; that he remarked that he was going home, and about that time Eggleston appeared when Goodwin said, "Come here, and get this, there is three cartridges in it;" that Goodwin then handed Eggleston the pistol; Eggleston then turned and went back towards the corner of the house; that Goodwin asked the witness if he had a gun, and the witness said he had one at home that was broken. The witness then turned and started towards home, and had gotten some 50 or 60 steps from the fence when the three shots were fired. The witness says that he and the parties had been in the house about 10 or 20 minutes when the shooting occurred. The witness Holley testified that he is a negro, and that when he arrived at Ross' house that night the only white men that were there was appellant and Goodwin, and that there was gambling going on at the house between appellant and Goodwin and the negroes, and that this gambling stopped when deceased appeared upon the scene together with his friends. This witness says he heard some shooting out of the house before the killing, but he did not know who did it; that after this shooting he (witness) came out on the gallery, and he saw Goodwin and appellant out there; that when he went out on the gallery appellant sat down by him and slapped him on the back, and said he (witness) was all right; that a party by the name of "Shorty" approached the appellant, Eggleston, and told him that there was somebody out behind the house and asked him who it was out there. Appellant got up, put his hand in his pocket, and said he would go and start the God damn yaps. Goodwin said, "You had better take this," and handed him a pistol. The witness asked who the yaps were that he had reference to, when Goodwin remarked, "That Clancy boy." Then it was, the witness says, he remarked that he thought the Clancy boy was all right, and when the witness said that, Goodwin said, "He is the God damn rascal." The witness says he turned and went into the house, and in about a minute he heard three shots and heard the deceased cry out: "Oh, Lord, Judge, go get the doctor." The witness Fralick testified that he went with the deceased to the home of Jake Ross on the night in question, and went on into the room, and when they got on the porch they saw Goodwin and appellant in what was called a shed room with some negroes, and they were all sitting down; that the deceased and the witness went into the back room of the house to get something to eat, and that there Eggleston approached the deceased and bantered him for a game of cards; that Eggleston left and came back, and said he could not find any cards, and the deceased remarked that he was just "stalling"; that while the witness and the deceased were sitting on the bed in the kitchen eating, he (witness) heard five shots fired, and that in four or five minutes thereafter the deceased and the witness left the kitchen and came around the house to the front, not being able to go from the kitchen to the back room on account of a table being across the door; that as they went around the corner of the house the deceased said to witness, "Wait on the porch till I come back." The witness went on the porch and stopped, and he looked around to see if he could see Woody, the deceased; that he there saw standing close to the porch appellant, Goodwin, and Shorty; that they were leaning against the wall; that they walked around the corner of the house, and the witness says he looked again but did not see deceased. He further says he then went into the back room of the house and looked into the kitchen to see if he could see the deceased, when he turned, came back out on the porch, and went to the edge of the porch and looked down the wall of the house, and saw Goodwin, Shorty, appellant, and deceased standing right close together. The first thing the witness said he heard appellant say to the deceased was, "Why did you say you would play, if you didn't intend to?" and deceased replied, "I God, or By God, I don't to." Here the witness says he didn't understand just what deceased said. The shooting then occurred; two shots were fired; that appellant did the shooting; that deceased was three or four or five feet from appellant when he was shot. The witness further says: "I saw Woody when the shooting occurred; Woody was doing nothing when appellant killed him; his hands were at his side. Just before Eggleston got the gun he stepped back, he did not sling his hands out, he just stepped back;" that he (witness) heard the cocking of the pistol, then Woody stepped back, and the gun fired. Witness says, "I heard Woody say, `Oh, Lord, I am shot, Judge, send for the doctor;' at the time of the conversation between Eggleston and Woody, Clancy was not close enough to have struck Eggleston with a knife, nor was he close enough to have struck him with anything."

The appellant took the stand and testified that he, in company with Goodwin, went to the negro "festival" on that night; that Clancy, deceased, and some more white fellows with him came after they (he and Goodwin) got there; that he did not know the deceased, and had never met him before that night; that he had a conversation with the deceased, and that he (appellant) said to the deceased that he was the best five-up player in Limestone county; that the deceased said that he was not much on five-up but he could play pitch; that the appellant said he was willing to play with him, and that he (appellant) went off to try to find some cards, and came back and had a talk with the deceased; that he heard some shooting that night, and that he was on the west side of the house by the side room on the gallery when he heard the shooting, and that he thought the shooting was on the east side of the house, the kitchen being on the east...