Hunter v. State

• Decision Date: 05 April 1939
• Docket Number: No. 19909.,19909.
• Citation: 128 S.W.2d 1176
• Parties: HUNTER v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W.2d 1176

HUNTER v. STATE.

No. 19909.

Court of Criminal Appeals of Texas.

April 5, 1939.

Rehearing Denied May 31, 1939.

Application for Leave to File Second Motion for Rehearing Denied June 14, 1939.

Appeal from District Court, Navarro County; Wayne R. Howell, Judge.

M. Hunter was convicted for murder and he appeals.

Affirmed.

J. S. Callicutt, Lovett & Lovett, and W. D. Ralston, all of Corsicana, for appellant.

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

HAWKINS, Judge.

Conviction is for murder, punishment assessed being five years in the penitentiary.

Appellant and deceased (Frank Murphy) had been neighbors for many years, living in the same community and only a short distance from each other. They had been friends prior to the homicide. Situated on Highway 75 a few miles south of Corsicana was a place called Allmon's Filling Station where both gasoline and beer were sold. The usual way traveled by appellant in going to said station as well as to Corsicana led by Murphy's house, from where the station could be seen. On the day of the killing appellant and Murphy met at the filling station. Each of them consumed several bottles of beer. They became involved in a silly argument over whether Murphy could beat a marble machine which was in operation at a night club situated a short distance from the station. The argument culminated in a fight between appellant and Murphy. In the fight or scuffle appellant fell or was knocked down. Allmon separated them and told them he couldn't have any fighting there and that one of them would have to leave. Appellant said he would go home. Allmon took him by the arm and went with him to appellant's car. At this point Allmon's testimony is that "they were cussing one another back and forth while he was getting in the car. Mr. Hunt said to Mr. Murphy when he left my filling station he was going home and get his gun and he would be back and he had just as well get his, or get ready, or something to that effect. Mr. Murphy said, `I hope you do get your gun.' That was about all that was said, and Mr. Hunter drove on." Appellant went home driving rapidly and was seen by witnesses at Murphy's house as appellant passed going in the direction of his own house. A few minutes after appellant left the filling station Murphy also left, riding with a neighbor to a point near his (Murphy's) home. A short time after Murphy reached his house appellant was seen coming back, driving not so rapidly as before when he passed Murphy's place. He was seen by parties at Murphy's to drive up to the filling station and get out of the car. He only remained at the station a few minutes when he again got in his car and went back towards Murphy's, which was also in the direction of his own home. Allmon's testimony was that when appellant came back to the filling station and witness first saw him he was in the driveway with a shotgun in his hand, and called twice for Murphy to came out; witness told appellant Murphy was not there, opened the door and told him to look. Appellant told witness to stand back out of the way, walked to the door and looked in. Appellant then started to leave and witness advised him "not to go down there like he was, he ought to wait until he sobered up and he would feel altogether different about it." Appellant made no reply but got in his car and left going towards home, but stopped at Murphy's. After appellant passed Murphy's going back towards the filling station Murphy got his pistol and buckled it on with the scabbard at his back so the pistol could not be seen from the front. Appellant had lost a radiator cap off his car as he drove by Murphy's some time in passing. Someone had picked it up and laid it on the back porch. The facts as related up to this point were established without controversy.

According to Mr. Allmon's testimony the fight between appellant and Murphy at the filling station amounted to little and no one got hurt to amount to anything. According to appellant's wife he was pretty considerably "bunged up" as a result of the fight.

The conflict in the testimony begins at the point where appellant stopped his car in front of Murphy's house. A sister and daughter of Murphy were eye-witnesses and their evidence is in accord to the following effect. When appellant stopped his car in front of the house he got out with the gun in his hand, having it out in front of him, and made two or three steps toward the house. Murphy went out the back door, picked up the radiator cap in his left hand and went towards appellant, offering to give him the radiator cap. When Murphy was within about fifteen steps of appellant, and having nothing in his hands but the radiator cap, appellant fired at him with the shotgun. Murphy then got his pistol from the holster and fired several times at appellant. Murphy then retreated to the rear of the house and was followed by appellant with his "gun up." One of the witnesses got between appellant and Murphy. After Murphy reached a point at the rear of the house appellant ran between him and the door, cutting him off from entering the house. Appellant then fired twice more at Murphy with the shotgun, it being one of the last two shots which killed him. A son of Murphy did not see the shots fired, but testified that a loud report first came from the front yard, followed by three not so loud, and then two more loud reports came from the rear of the house. Miss Kelly, a young lady 18 years of age, lived about 300 yards from Murphy's house, which she could see plainly. She saw appellant driving rapidly on the road going towards the filling station and then returning towards Murphy's. Her testimony follows: "I saw him when he drove into the Murphy yard. I did not see him get out. The first report I heard was the loud report of a gun. Just in a few seconds after that, or a few moments, I heard two or three more shots not quite so loud. The group of shots I heard were not none as loud as the first shot I heard. That attracted my attention in that direction. When I first heard the reports I saw a man running another man, I took it to be Mr. Hunter running Mr. Murphy, toward the back of the house, * * * and when Mr. Murphy was about half way between the garage and the house he stopped, he didn't fall, and I heard two more shots along there, then he disappeared between the overhead tank and the garage, and when he disappeared I saw this man go in after him, I took it to be Mr. Hunter, I couldn't tell then, but he had a shotgun in his hand; I saw the barrel of the shotgun in the sunlight glistening. The man doing the chasing had the shotgun. * * * When the man disappeared I said I heard one or two shots. Those shots were loud, awfully loud."

Appellant did not testify. He put his defense into the case through a res gestae statement testified to by his wife. After the killing appellant did not leave the scene in his car but ran towards home on foot. His wife met him. He testified that appellant made to her the following statement. "He told me about the shooting. He told me just after he got the gun he went to Allmon's Filling Station. He said he was going back over there to make peace with Mr. Murphy and beg his apology over at the station, and said he went back, and started back home, and he said he intended to come on home, Mr. Murphy was not at the station, he was going to come on home, and Mr. Murphy walked out and stopped him as he was coming through with the radiator cap in his hand, had it in his left hand, and he said he stopped and got out of the car and was going to get the radiator cap and Mr. Murphy shot at him three or four times and he went back to the car and got his gun out of the back of the car. And afterwards, of course, naturally he shot Mr. Murphy. He didn't tell me where the shooting occurred, whether in the back or front yard, I did not ask him that question."

Appellant called a number of witnesses who were so situated that they could see no part of the shooting but heard the reports of the guns. These witnesses testified that the first shots heard by them,— being three or more—were not so loud as shots coming afterwards, leaving the inference that the first group of shots were from a smaller gun,—Murphy's pistol—and the later shots from appellant's shotgun, thus supporting appellant's claim that Murphy fired first.

We have been at pains to set out the salient facts in some detail because in our view of the case only two questions require discussion, and each of them turns on the evidence.

At the request of the State the court gave the following special charge on abandonment of the difficulty by deceased:

"The right of self-defense commences when the necessity therefor arises, and continues as long as there is real or apparent danger, and ceases when such real or apparent danger disappears. A person who is justified in firing the first shot, is justified in continuing to shoot as long as it reasonably appears to him, from his standpoint at the time, that his life or person is in danger at the hands of his adversary, that is, until the danger, real, apparent or threatened, as he sees it, has ceased, but he has no right to continue to shoot after he is aware that the danger, real, apparent or threatened, has ceased; and where a person knows that his assailant has abandoned the difficulty or has fled or is fleeing to a place of safety, and is making no further apparent effort to renew such difficulty, and such person thereafter pursues his assailant knowing that all real or apparent danger is over, and shoots and kills him, that homicide is unlawful. A person has no right to pursue and kill his adversary after the latter has in good faith abandoned the difficulty, and the former knows that all danger to him has ceased; and, if such person, under such circumstances, nevertheless, pursues and kills his adversary, his act in doing so would not be justified on the ground of self-defense. But, under...