Goodgame v. State

• Decision Date: 19 June 1935
• Docket Number: No. 17683.,17683.
• Citation: 86 S.W.2d 753
• Parties: GOODGAME v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W.2d 753

GOODGAME v. STATE.

No. 17683.

Court of Criminal Appeals of Texas.

June 19, 1935.

Rehearing Denied October 23, 1935.

Commissioners' Decision.

Appeal from District Court, Baylor County; Isaac O. Newton, Judge.

V. L. Goodgame was convicted of murder without malice, and he appeals.

Affirmed.

Williams & Bell, of Childress, and Joe D. Bell, of Paducah, for appellant.

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

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder without malice, and his punishment was assessed at confinement in the state penitentiary for a term of five years.

The state's testimony shows that the deceased and Curtis Thornton were employees on the Swenson ranch in Cottle county. The Swensons had been allowing people to enter their ranch for the purpose of cutting and hauling wood from it upon the condition that those who entered the same for such purpose had to grub out the roots of trees which they cut. On the morning prior to the time of the alleged homicide, Jack May went to the ranch after wood, at which time May and deceased had some words about May not grubbing out the stumps of the trees which he had cut. May denied this, which resulted in some unpleasant remarks being passed between them. May went home with his load of wood, but in the early afternoon he returned for the purpose of getting more wood, and on this trip he was accompanied by the appellant, who also came to get some wood, each one driving his own wagon and team. When the appellant and May arrived at the gate leading into the ranch they met the deceased and Thornton. Appellant, speaking first, said, "Which one of you G____ d____ fellows was going to whip Jack May," to which Thornton replied, "Neither of us," whereupon the appellant said, "You damn fellows get your fighting clothes on. We have come here to clean this outfit out." Thornton replied, "You needn't come over here starting any trouble. If you want any wood, you can grub it," to which appellant said, "You damn fellows get your fighting clothes on," and then dropped down behind the ingate of his wagon and began shooting. Both the appellant and deceased began shooting at each other about the same time. Deceased was struck by three bullets, which caused his death. The appellant's testimony contradicted the state's case and showed that deceased was the aggressor by firing the first shot, whereupon the appellant, acting in self-defense, shot the deceased.

The appellant's first contention is that the trial court erred in failing to properly and pertinently instruct the jury as to the law of murder without malice and failed to apply the law to the facts. An inspection of the court's charge reveals the fact that the court charged the jury upon the law of murder with malice and murder without malice and upon self-defense, but, if it be conceded that the court did not properly and pertinently apply the law of murder without malice to the facts, yet the jury evidently construed the charge as favorably to the appellant as though the court had written it in the most approved legal phraseology, because they found him guilty of murder without malice. Just how the appellant was injured by the charge complained of we must confess we are unable to understand. The authorities cited by the appellant are not in point, because in each instance the jury found the defendant guilty of murder with malice aforethought. We therefore overrule the appellant's contention.

His next contention is that the court erred in instructing the jury upon the law of provoking the difficulty and limiting his right of self-defense because such an issue was not raised by any evidence. We are unable to agree with the appellant because the testimony adduced by the state clearly showed that the appellant by his hostile language and conduct, which we do not deem necessary to here...