Fifer v. State

• Decision Date: 18 October 1911
• Citation: 141 S.W. 989
• Parties: FIFER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 989

141 S.W. 989

FIFER v. STATE.

Court of Criminal Appeals of Texas.

October 18, 1911.

On Motion for Rehearing, January 3, 1912.

Appeal from District Court, Lipscomb County; F. P. Greever, Judge.

P. P. Fifer was convicted of murder in the first degree, and he appeals. Affirmed.

J. W. Saunder, Adkins & Sewell, and Willis & Willis, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted by the grand jury of Hansford county, charged with the murder of Sheriff Martin. The venue was changed, and the cause was tried in Lipscomb county. Appellant was adjudged guilty of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

There are a number of bills of exception and assignments of error in the record, and that our ruling thereon may be better understood it may not be amiss to give a brief outline of the case as presented by the record. It appears that appellant claimed and was residing on a tract of land in Hansford county; that G. W. Norton, executor of the estate of Geo. W. Norton, also claimed this tract of land. Norton brought suit against appellant to try the title to this tract of land in the district court of Hansford county in 1908, and appellant was served with citation by B. O. Cator, who was then sheriff of that county, and who also levied a writ of sequestration on the land in question and notified appellant he had 10 days in which to replevy it, otherwise he would be compelled to put him off of the land. At that time, according to the testimony of Ex-Sheriff Cator, the following conversation took place: When the sheriff informed him that he had papers to dispossess him, appellant said: "God damn you! I have taken all I am going to take from you." When the sheriff replied: "I didn't come here to fight; I came here to talk." Appellant replied: "God damn you! You would sooner see your box than put me off of here, and he would kill any s____n of a b____h that attempted to put him off." The sheriff told him he would give him 10 days to replevy, and if he did not do so he would return and put him off. Appellant did not replevy the land, and the sheriff sent his deputy, Martin, the deceased, and Bowling, a special deputy, to execute the writ and dispossess appellant. Bowling says: "When we got there Martin called appellant, and appellant began cursing, saying: `Martin, I said I was going to kill the first man that undertook to put me off this land, and I have not taken it back, and if he (Martin) was hunting for trouble, he was ready for it.' Martin at once arrested him, and went in the house, and secured possession of appellant's gun, keeping him under arrest while moving his property off the land." Subsequently, appellant moved back on the land in question.

At the next term of court appellant did not appear, and judgment by default was rendered against him, adjudging the land to be Norton's. A writ of possession was issued, but which appellant did not respect. Norton then brought suit to enjoin appellant from going on the land adjudged to him in the suit, but appellant, although served, ignored the injunction. Affidavit was then made that he had disobeyed the injunction, and appellant was adjudged guilty of contempt and sentenced to jail. After being confined in jail for some time, he signed an agreement not to go on the land, unless the courts should finally adjudge him to be the owner, when he was released. In violation of the orders of court and his agreement, he at once returned to the land and took possession thereof. Norton then brought suit in federal court and sued out a writ of sequestration. A deputy marshal served him with citation, and levied the writ, informing the appellant he had 10 days in which to replevy and hold the land, and, if he did not do so, he, the marshal, would be compelled to eject him therefrom. Appellant did not replevy, and after the lapse of time plaintiff Norton replevied the land, and, when he did so, Bolton, the deputy marshal, and Sheriff Martin, deceased, went to the land to inform appellant and put Norton in possession. They went to the house in daytime, but did not find appellant. They returned shortly after dark, seeing a light in the house. Bolton had the writ of sequestration, replevy bond, and bond of indemnity with him. Martin had an execution for costs against appellant issued out of the district court. This much may be said to be uncontroverted.

The state's testimony showed that, when Bolton and Martin started to the house, the light went out, and appellant came out running towards the barn, when Martin, while about 40 or 50 yards of appellant, called to him: "Hold on Phil! This is Martin" — repeating it. When appellant did not stop, Martin fired. Appellant kept running until he got to the barn, a distance of about 150 yards. Bolton and Martin then went to the barn and called appellant; Martin telling him who he was, and that he wanted to see him. No response was made. Deceased, Martin, and Bolton then started to return to the house, but, after going a part of the way, decided to return to the barn and search for appellant. When they got to one stall, Martin struck a match and remarked, "This is Phil's (appellant's) horse," but, not seeing appellant, he went to the next stall, and asked Bolton for a match to look in it. As he struck the match, a gun fired, killing him. The muzzle was so close as to burn the fuz on his garments. Bolton left, going in search of assistance. Johnson testified that appellant came to his house the night of the killing about 11:30 and told him he wanted to give himself up; that he had killed a man; said he had killed Martin; that it was Martin's voice. A witness testified that he was on appellant's place the day before the killing, and, when appellant saw him coming, appellant went to his barn and got a gun and left and went into a nearby dugout; that he could detect appellant watching; that appellant did not return to the house, and he left.

Appellant testified for himself and denied the conversations testified to by Ex-Sheriff Cator and Special Deputy Bowling. He also denied the conversation with witness Johnson, and testified he did not know who it was when he shot and killed him, but he did hear Bolton say, after the shot was fired, he had killed Martin. He explained that the day before he was duck hunting, and had gone by to feed his stock, when the witness saw him get the gun at the barn. He returned home from a brief trip to town the day of the killing, and, in coming by the barn, left his gun down there. He did not know Bolton and Martin were near until he had blown out the light and started in a walk to return to the barn to feed. He was not running; heard some one say. "Hold up!" But heard no more, and then two shots were fired at him, and he run to the barn. The two men followed him to the barn. He did not know who they were, nor their purpose. He concealed himself in the stall, the adjoining one in which he had placed his horse. He did not fire until Martin started to come into the stall in which he was located, and not knowing who it was, nor his purpose, he shot. When Bolton left, he turned his cows into the pasture, got his horse, and left, going first to Thronson's, and then to Johnson's. On cross-examination he admitted that he knew judgment had been obtained against him for the land, but said attorneys said they could have it set aside, as it was taken on an amended petition; that he had been enjoined and fined and imprisoned for violating the injunction, and had signed a written agreement not to go on the land, and had ignored the injunction and agreement.

1. Appellant complains of the action of the court in overruling his motion for a postponement of the case, in which he alleged that he desired to have the land surveyed, to show that he was not on Norton's land, but was in fact on his own land, and had a right to resist being ejected therefrom. The judgments of the district courts of this state, when not appealed from, are final, and when, in a suit between Norton and appellant, the land was adjudged to belong to Norton, appellant was bound thereby. It is true, he now contends that the judgment was void, because rendered by default on an amended petition. By examination of the original petition and the amended petition, we find that no new cause of action was set up in the amended petition. In the original petition plaintiff Norton sued in trespass to try title and for damages, for a section of land, alleging it to be "section number 135, certificate number 33/455, abstract number 68, G. H. & H. R. R. Co. surveys, Hansford county, Texas." In the amended petition the land was thus again described, but in addition thereto the field notes were set out as well. This is the only thing added by way of amendment. In Railway v. Morris et al, 68 Tex. 60, 3 S. W. 457, 461, our Supreme Court says: "Where, after issuance and service of citation, amended petition was filed containing same allegations regarding damages, but more specific, and no new cause of action was alleged, held no notice of filing amendment necessary to enter default." In this case no new cause of action was set up; the original petition sufficiently described the land to have proceeded to judgment, and the fact that by amendment the field notes were added thereto would not render the judgment by default void. Appellant cannot be permitted to say he had a right to defend his possession by force of arms, especially so as subsequent to the rendition of this judgment he was informed that his contention had been adjudged against him by a court of competent jurisdiction, had been arrested and imprisoned for contemptuously ignoring the court's orders in regard thereto, and in order to get released from jail had signed an agreement to remain off the land. No man has a right to take his shotgun and set himself up in defiance of the courts of his country, nor...