Hardison v. State

• Decision Date: 18 January 1905
• Citation: 85 S.W. 1071
• Parties: HARDISON v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

85 S.W. 1071

HARDISON v. STATE.^*

Court of Criminal Appeals of Texas.

January 18, 1905.

Appeal from District Court, Collin County; J. M. Pearson, Judge.

Bill Hardison was convicted of murder, and appeals. Affirmed.

Abernathy & Mangum, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was allotted seven years in the penitentiary for murder in the second degree. The facts in brief show that, a few moments before the homicide, a game of craps was broken up by appellant by use of a pistol, and the parties scattered. This pistol was taken away from him at the time, but, after the parties left the house, appellant secured his pistol and followed them, and engaged deceased in a wordy altercation, which finally resulted in deceased being shot and killed by appellant. Appellant's theory was that deceased was attacking him with a car pin (a piece of iron) at the time of the killing. The difficulty in the house, which broke up the game, occurred about 10 or 15 minutes before the killing. At the time of the killing, deceased said to defendant, "You always want to break up a game every time I get into a game and come off winner." Claude Berry was permitted to testify in regard to this difficulty in the house, in which the game was broken up. Objection was urged because it was immaterial, irrelevant, and prejudicial, and that the same had nothing to do with the trouble between defendant and deceased. The testimony of this witness was, "We got into a little scrimmage in the house some way, and the game broke up;" and in reply to the question, "Who was in the scrap?" the witness stated, "Bat Holloway, Bill Hardison, and Buck Douglass were in the scrap." Thereupon state's counsel asked witness to state "what was said and done there with reference to the scrimmage." Defendant further objected to the witness testifying: "There was fifty cents missing some way, and they could not get the straight of it, and they got into a little squabble about it some way. I did not pay much attention to it." Thereupon state's counsel further asked the witness, "Did you see what Bill did?" He testified, "Bill got up and grabbed a pistol, and Frank Rector caught him." The court appends this qualification: "The testimony was admitted as a part of the res gestæ. This witness testified that the killing took place 10 or 15 minutes after the game broke up, and also testified that, at the time of the killing, deceased stated to defendant, `You always want to break up a game every time I get into a game and get off winner.'" The next bill is reserved to the testimony of Sam Bumpass, practically to the same effect as the former, as was also the third bill of exceptions. We think this testimony was admissible. It was explanatory and practically res gestæ of the acts occurring at the homicide; it was the beginning of the difficulty in the house in which appellant used his pistol to break up a game, and after the parties left his house he secured his pistol and followed them. Deceased was engaged in that game in the house.

Bill of exceptions No. 4 was reserved to the statement of the witness that appellant was drinking on the occasion when the shooting occurred. This testimony was also admissible. Witness Rector was permitted to testify that they had all gone down to appellant's residence that evening to shoot craps; that defendant did not...