Jenkins v. State

• Decision Date: 07 March 1906
• Citation: 93 S.W. 726
• Parties: JENKINS v. STATE.
• Court: Texas Court of Criminal Appeals

93 S.W. 726

JENKINS v. STATE.

Court of Criminal Appeals of Texas.

March 7, 1906.

Appeal from District Court, Parola County; Richard B. Levy, Judge.

W. W. Jenkins was convicted of murder in the first degree, and appeals. Reversed.

Buford & Buford, J. W. McDavid, A. G. Brooke, W. R. Anderson, and R. T. Brown, for appellant. W. M. Futch, W. R. Jones, J. G. Woolworth, Frank Lawson, N. B. Morris, P. O. Beard, Dist. Atty., Claude Pollard, Office Asst. Atty. Gen., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

It appears from the evidence that appellant bore a grudge against deceased for some time preceding the homicide, and that appellant made various threats at different times against the life of deceased. The evidence also shows that deceased and the sons of appellant were at outs, and on one occasion a difficulty occurred between them. Deceased is shown to have borne animosity against appellant also. Deceased, Lee Langford (a young man), and appellant (justice of the peace) all lived near the little town of Mt. Enterprise, in Rusk county. On the evening of the homicide appellant was drinking, and to several persons made dire threats to take the life of deceased. On that night deceased and Will Bussey were going hunting. They went by Mt. Enterprise to get some tobacco. They first went to March & Co.'s store, and then went to the store of J. T. Scoggins, where Alfred Bullard was clerking. Several persons were in the store when they first came in, but they all left, leaving Alfred Bullard, Bussey, and deceased in the store. Bussey bought some cider, and he and deceased were standing at the counter drinking the same. The counter ran north and south in the room. The door was in the east. Bullard (the clerk) was on the west side of the counter. Deceased was standing toward the north end of the counter, and Bussey was standing four of five feet distant from him, toward the south end of the counter. Deceased's back was toward the door. Bussey turned rather sideways, toward deceased, and, according to his testimony, was in a condition to look toward the front of the building, and was looking toward the front of the building when the firing occurred. In this position of the parties a shot was fired from the door, and struck deceased in the back, which caused his death. Whoever shot deceased immediately left. Appellant was arrested the next day for the homicide. On the trial, the state relied on the circumstances showing a feud between the parties, and threats by appellant against deceased, and on the positive testimony of Bussey, who stated that he recognized appellant as the party who fired the shot from the flash of the gun. This witness states that he was standing sort of facing Langford and looking toward the door when the gun fired. By its flash, and the light therefrom, he recognized appellant as the man who fired the gun. He seemed at the time to be standing about the edge of the gallery. The muzzle of the gun appeared to be about six feet from the door of the store. It was a dark night and raining some. It was shown in connection with his testimony that there was an inquest held over the body of deceased that night, and he testified that he did not know who it was that killed deceased. He explains this by stating that he told his father about it that night, and upon his advice, and because he was afraid appellant and his sons would use violence on him if he told what he knew, he did not tell that he recognized appellant until he went before the grand jury. Appellant relied on an alibi, which he proved by a number of witnesses, and also that other persons had animosity against deceased and were likely to have done the killing. This is a sufficient statement of the case to discuss the propositions arising from the assignments of error.

Appellant made a motion for continuance for the want of the testimony of Wm. Presley, John Ripley, and Dr. S. H. Barnham. It is shown in the application that, in response thereto, the state said it would have the witnesses for whom appellant craved a continuance brought into court, so that they might testify. A number were brought in, but the three mentioned were not procured. It may be conceded that the diligence was sufficient. Appellant said he could prove by the absent witness Presley that he went from Weston, Tex., to Mt. Enterprise, to try to get Langford (deceased) to marry Ada Singleton; that he failed to do so; that he conferred with defendant, who was justice of the peace at Mt. Enterprise, about instituting a proceeding for seduction against Lee Langford, and conferred with the prosecuting officers of Rusk county about instituting proceedings, and had complaint prepared. In this connection it may be stated that one portion of appellant's defense consisted in showing that deceased may have been killed by some person on account of said seduction. An examination of the statement of facts discloses that this character of testimony was introduced with reference to what Presley did about going from Weston to Mt. Enterprise to induce Langford to marry Ada Singleton, and that he refused to do so; and there was no controversy on this subject. Appellant said he proposed to prove by John Ripley that he was the last person who left the store just before the shooting; that said witness will also state that defendant left the store some time before he did, and that there was no person in the store, except deceased, Will Bussey, and Alfred Bullard when he left. A few minutes after he left the store the gun fired. These facts were conceded by the state, and we fail to see how his testimony would have been material. It was also proposed to prove by Dr. Barnham that at the time of the homicide he was sitting on the gallery of a house about 75 yards west of the place where the killing occurred, and that immediately thereafter a single horseman passed rapidly in front of the house, going southeast from the place of the killing. We fail to see how this fact was material, either of itself or in connection with the testimony shown in the statement of facts. We do not believe the court erred in overruling the motion for continuance.

Appellant complains because the court did not charge on murder in the second degree. We do not believe that the facts show this to have been a case in which murder in the second degree was involved. Whoever shot deceased did so in the role of an assassin. He prepared himself beforehand, hunted deceased, and shot him from the darkness. Leslie v. State (Tex. Cr. App.) 49 S. W. 73; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Beard v. State, 41 Tex. Cr. R. 173, 53 S. W. 348; Whitfield v. State, 40 Tex. Cr. R. 14, 48 S. W. 173; White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705.

Appellant also complains because the court failed to charge on circumstantial evidence. The fact that Bussey testified, positively identifying appellant as the shooter and slayer of deceased, takes this case out of the realm of circumstantial evidence.

Appellant also insists the court erred in failing and refusing to charge the law applicable to accomplice's testimony, and the corroboration thereof, contending that Bussey was an accomplice, because on the night of the homicide, at the inquest, he denied any knowledge of who did the shooting. Mere concealment of a crime does not make one an accomplice. This appears to be all that the witness Bussey did, and he explains why he did this. We do not believe the court erred in refusing to charge on accomplice testimony with reference to this witness.

The court did not err in refusing to give special requested instructions. In so far as applicable to this case, they were given in the main charge of the court.

Appellant also urges, as a ground for the reversal of this case, the misconduct of the jury in discussing appellant's failure to testify. After the trial, the juror Bellamy made an affidavit raising this question, and isssue was joined by the state, and the court heard testimony pro and con on this subject. We gather from this testimony that something was said by some juror (not identified), in connection with the reading of the charge by the jury on this subject, in regard to the failure of defendant to testify. One of the jurors said, "Why didn't the old man get on the stand?" And in this connection it was immediately replied, "We are not to consider that in this case." Or, according to the language of one of the witnesses, it was replied: "That is not to be considered. The defendant has a right to swear or not to swear." Bellamy (on whose affidavit the question was raised), on examination, stated that the matter was spoken of by some one; did not remember who; several spoke of it; could not say just what was said about it. The remark was made the first or second evening after the charge was read by Jim Williams. He said that was not to be considered, and it was not discussed any more. As we understand, the concensus of the testimony showed that, in connection with the reading of the charge with reference to defendant's right to testify, the remark or inquiry was made, "Why didn't defendant testify?" And there was an immediate reply to the effect that that matter was not to be discussed or considered by the jury. A number of cases are referred to by appellant to sustain his contention, to wit: Tate v. State (Tex. Cr. App.) 42 S. W. 595; Id., 35 Tex. Cr. R. 231, 33 S. W. 121; Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251; Thorpe v. State, 40 Tex. Cr. R. 346, 50 S. W. 383; Rogers v. State (Tex. Cr. App.) 55 S. W. 817. In Tate's Case, there was a discussion in the jury room about defendant's failure to testify to a greater extent than is here manifested, and the same was used as a circumstance against appellant. In Wilson's Case it was also shown that there was a...