Ex Parte Polk

• Decision Date: 21 January 1925
• Docket Number: (No. 9201.)
• Parties: Ex parte POLK.
• Court: Texas Court of Criminal Appeals

268 S.W. 464

Ex parte POLK.

(No. 9201.)

Court of Criminal Appeals of Texas.

January 21, 1925.

Appeal from District Court, Fisher County; Bruce W. Bryant, Judge.

Jones Polk was remanded without bail on charge of murder, and he appeals. Affirmed.

T. Vard Woodruff, of Sweetwater, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

From an order of the district judge of Fisher county remanding relator without bail, upon a charge of murder growing out of the killing of Jim Bob Largent, relator appeals.

We gather from the testimony that Laura Holley is a negro woman, who, at the time of the homicide, was running a rooming and eating house in the town of McCauley in Fisher county. Relator is a white man. Laura Holley was the principal witness for the state. Her testimony condensed is: That appellant came to her place of business on the night of the homicide between 8 and 9 o'clock and told a number of negroes who were in the room where he entered that he was "hi-jacking" and for them to hold up their hands, relator having a pistol at the time; that Ed Anderson was with him; that relator searched the negroes, then came to the room where witness was, secured a lamp, and with a number of other men went into a room where they engaged in gambling until late in the night; that after they came out of the room relator walked to the front part of the building and fired a shot into the ceiling; then walked back in the kitchen and sat down in a chair. Several parties appear to have been in the kitchen at this time, among them deceased, a boy about 17 years of age. Laura Holley further says that after relator returned to the kitchen he said: "Well, I am going to kill me some s____ of a b____;" got up out of his chair and shot deceased. There is no evidence in the record which shows any quarrel between relator and deceased, or which intimates that deceased was doing anything causing relator to shoot him.

The only witness used by relator as to the incident of the killing was T. Cooper, who, with Ed Anderson, was also charged with the killing of deceased. Cooper testified that after they came out of the room where the gambling was engaged in Ed Anderson fired the shot into the ceiling and not relator; that at the time the pistol was discharged which killed deceased the witness Laura Holley was not in the room where the shooting occurred, but was in another room with Ed Anderson. He accounts for the shooting by the statement that relator was leaning back in a chair and his pistol slipped out of his pocket on to the floor; that both witness Cooper and relator reached for it; that as relator picked it up it was discharged accidentally, the shot striking deceased. He explains relator's action earlier in the night at the time he searched the negroes, by stating that relator claimed to be an officer looking for a negro man who was supposed to have stolen a pistol. This witness Cooper also testified that; after the shooting, relator said to deceased "Do you think I shot you a purpose?" to which deceased replied, "God knows, Jones, I know you didn't."

In determining if an accused charged with murder be entitled to bail, we have found it necessary to inquire if express malice be shown. Ex parte Francis, 91 Tex. Cr. R. 398, 239 S. W. 957; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092. See, also, many authorities cited in those opinions. It appears to be relator's contention that this homicide occurred suddenly, without premeditation and without motive, and that therefore evidence of express malice is...