Henderson v. State

• Decision Date: 30 March 1932
• Docket Number: No. 14639.,14639.
• Citation: 48 S.W.2d 271
• Parties: HENDERSON v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W.2d 271

HENDERSON v. STATE.

No. 14639.

Court of Criminal Appeals of Texas.

March 30, 1932.

Commissioners' Decision.

Appeal from District Court, Nacogdoches County; C. E. Brazil, Judge.

Pat Henderson was convicted of murder, and he appeals.

Reversed and remanded.

Adams & McAlister, of Nacogdoches, for appellant.

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

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for three years.

It was charged in the indictment, in substance, that appellant did, with malice aforethought, kill James White by shooting him with a pistol.

It appears from the record that Mose White, a relative of deceased, had lost a dog, which he had accused Buster Whitley of killing. On the day of the homicide, deceased and his son, Oleen White, had gone to the gin with a load of seed cotton. Appellant, Buster Whitley, and Buell McNeese came to the gin while deceased was waiting to have his cotton ginned. Appellant was not related to either Whitley or McNeese. Deceased's son testified for the state, in substance, as follows: He and his father, the deceased, were sitting on a bale of cotton when he saw appellant and his companions coming toward them. Upon approaching them, appellant asked him where he lived. When he answered the question, appellant struck him, knocking his hat off. Deceased said: "Let's get away from here." The witness began running, and appellant followed him, with a brick in his hand. He ran some distance away from the gin, pursued by appellant. While he and appellant were away from the gin, he (the witness) heard some shots. When he returned he found that his father had been shot. He did not see appellant do anything to deceased.

It was uncontroverted that Buster McNeese fired the fatal shots, and that appellant was not immediately present at the time. Witnesses for the state testified that, as deceased ran away from McNeese and Whitley, McNeese fired three or four shots at him; that deceased then ran into the gin office; that after appellant returned to the scene of the homicide he and Buster Whitley went into the gin office; that Whitley attacked deceased with his fists; that Whitley reached his hand in deceased's pocket and got out his knife, saying: "I am going to cut his head off"; that one of the witnesses interfered, and the parties left; that when Whitley and appellant approached the gin office, where deceased had run after being shot, each had a brickbat in his hand. At this point we quote from the testimony of one of the state's witnesses as follows: "Pat Henderson (appellant) was not right there when the shots were fired; he had done started up towards the road there after the negro boy. The best I remember the negro boy was bareheaded and Pat Henderson was after him. I did not see Pat Henderson do anything there on that ground except chase that negro with a brick; he was not there when the shots were fired."

Touching the occurrence in the gin office after deceased had been shot, a witness for the state testified: "I did not see Mr. Henderson (appellant) hit him (deceased). * * * And he ran out the door and they were dragging the negro (deceased) out — that is Mr. Whitley was; Mr. Henderson did not have hold of him. * * * Mr. Whitley was over him down between those scales in a narrow space about that size; and he got down over him and got his knife out, and went in his pocket; I did not see him with the knife when he pulled it out or see him open the knife. I did not see the knife in his hand — possibly it was shut up, I don't know; and he said: `I will cut his head off'; and I said `Don't do that, you have killed that negro already'; and I did not see Mr. Henderson (appellant) do anything; it is my recollection that he was standing there at that time; but I did not see him hit anybody, only he came out of the office door with a drawn brick."

State's witness McDuffie testified, in substance, that after deceased ran into the gin office he saw appellant and Buster Whitley with deceased shoved up against the door, apparently trying to strike him. He said he did not know whether they hit him or not. He said that he later saw Buster Whitley strike deceased in the face.

Appellant testified, in substance,...