Joy v. State

• Citation: 123 S.W. 584
• Parties: JOY v. STATE.
• Decision Date: 27 October 1909
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

123 S.W. 584

JOY v. STATE.

Court of Criminal Appeals of Texas.

October 27, 1909.

Rehearing Denied December 22, 1909.

Appeal from District Court, Mason County; Clarence Martin, Judge.

Louis Joy was convicted of murder in the second degree, and he appeals. Affirmed.

R. Runge and Jenkins & McCartney, for appellant. F. J. McCord, Asst. Atty. Gen., and Dayton Moses, Dist. Atty., for the State.

RAMSEY, J.

This appeal is prosecuted from a judgment of conviction for the offense of murder in the second degree had in the district court of Mason county, Tex., on March 11th of this year, by which appellant suffered punishment at confinement in the penitentiary for a term of 25 years. There are a number of questions raised in the case; and, in view of all the circumstances and many contradictions, and the peculiar character of the case, a rather fuller statement will be given than might ordinarily be deemed sufficient. The evidence showed that the deceased, C. M. Kyger, was a young married man who lived in the town of Mason, where he was engaged as a clerk, and that he boarded at the Southern Hotel in that town. He left his father-in-law's ranch about seven miles west of the town of Mason about 8 o'clock on the night of his death, Sunday, December 13, 1908, to go to the town of Mason. He rode a horse belonging to his father-in-law. The road from where he started to the town of Mason led through a gate in a rock fence near the house of appellant. About 9 o'clock of the same night the sheriff received information that appellant had shot a man near his house. He went there at once, and interrogated him as to what had happened. Appellant's statement to the sheriff was, in substance, that some one was stealing his corn, and that he ran off towards the gate, and he shot him as he went over the gate; that he and Leslie Crouch were carrying some bedding out to the crib; that Crouch, who also had a gun, said, "There is one of the men now"; that he, appellant, grabbed his gun and took after him; that the man was standing at a tree at the northeast corner of his lot when he first saw him, about 15 steps distant; that the man broke to run, and he took after him, and ran into a wagon tire, fell down, and that he hollowed to him about 15 or 18 times to halt, but he did not stop, and he commenced shooting. He said the man had a sack of corn on his back. The sheriff examined the ground, and found there was a sack of corn lying on the south side of the gate from three to five feet distant. There was the body of a man lying on the north side of the gate, head towards the southeast, on his right side, with his back to the gate, with a bullet hole through his head. This was the body of Kyger. He had on, as the sheriff testified, a very nice suit of clothing—coat and pants. The sheriff testified that he noticed horse tracks on the north side of the gate, and it looked like the horse had wheeled and run off. It was also shown by the testimony of this witness that from where the body was lying to appellant's crib was 350 feet; that the distance from where appellant claimed to have stood when he shot was 140 feet south of the gate. It was also shown that the sack with the corn in it was a tow sack; that he examined deceased's clothing, and could find no evidence of a tow sack being carried by him, and could find no corn silks or pieces of shucks on his clothing. On cross-examination it was shown that appellant stated that he did not know who it was he had shot; that he was going out to the barn with some bed clothing, and was going to sleep in the crib that night to prevent any one from stealing his corn; that he had had some corn stolen before this. Leslie Crouch, introduced by the state, testified that at the time of the homicide he was staying on the Greenwood farm in a house about 150 yards south of where appellant lived; that he and his wife and his father and mother all lived together; that on the night of the killing he went over to appellant's after supper to get some fodder to feed his horse, and that one Henry Caveness went with him; that the fodder was in the lot adjoining appellant's crib on the south side; that at this time and place he saw two parties jump up and run away from the fodder stack, one of them was a tall, slim fellow and the other was a low, heavy set man; that, when they went in the house, they told appellant that they had seen two men at the crib, and he asked what kind of shaped men they were, and that they told him, and he looked at his wife, and said to her, "Maybe that is the boys," and he then told her to fix up the bedding, and he would sleep there; that the two got the bedding, etc., and started out, appellant having his gun with him; that, after they got between the gate and the crib, the dog began barking, and went out towards the gate north of the crib on the road towards Mason; that appellant threw his bedding down and followed up the road, and, when he got up there, he began shooting; that, after the shooting, appellant called him, and he went towards the gate where he was, and asked him what he had done, and appellant said he had played the devil or something like that, and said that he did not give a damn, that he had no business fooling around; that he said he had shot somebody, and for "me to go and tell my father, which I did," and then went into Mr. Joy's house; that appellant then had witness' father and Caveness to go and get the sheriff; that, as they left, appellant told him that he was into it and into it bad, and that "I had to be damn sure that I swore to get him out of it. He told me that he wanted me to swear that I saw a man at the corner of his crib lot with a sack of corn on his back, and that when he hollered `halt,' that the fellow ran, and that he hollered `halt' four or five times and ran after him before he began shooting. He said, if I did not swear, I was in danger just like the other fellow." The testimony of this witness was savagely attacked, and he admitted making many contradictory statements on the examining trial to those contained in his testimony on the final trial, stating he had given his testimony to the effect admitted because appellant had told him to do so. These contradictions were both important and radical, but we deem it unnecessary to set them out here.

Henry Caveness, introduced by the state, testified to somewhat the same facts, to his visit to appellant's house, and seeing two men at the fodder stacks and the communication of this fact, and to his and Leslie Crouch's going to the crib; that he heard the shots and went out on the gallery; that appellant called him and he went to where he was; that, soon after this, he started back to the house to put on his clothing, when, he said, appellant "told me to go down and get a sack of corn, and get his little boy and bring the corn up there. I went to the house and got a sack of corn. He did not tell me what he wanted with it. I went into the lot and got the corn in a tow sack. I found the sack hanging in a live oak tree at the smokehouse. Defendant's son and I carried it up to Mr. Joy, and he put it in the road. He said he put it there to protect himself." The testimony of this witness was seriously contradicted. He admits that he did not at the examining trial say anything about the sack of corn because as he says he was afraid that appellant would kill him if he ever got loose.

William Crouch corroborates much of his testimony by the following statement: "He told Henry Caveness to go and get Pete and get some corn and put it by the gate. He said he shot a man, and wanted to put the corn there by the gate to protect himself, and for us to tell that the corn was there. He said it was for protection, and we had to swear that it was there when we went out there." This witness, on cross-examination, admitted that in his evidence on the examining trial he had made no mention of this incident, and explains that he had failed to mention it for the reason that appellant had told him not to; that he told them that they all had to swear that they had seen the corn there; that they all had to swear alike; that, before this, he knew that appellant had claimed that his corn was being stolen.

Appellant's young son, Pete Joy, a lad who said he was going on 11 or 13 years of age, was introduced, whose testimony tended to impeach strongly that of Mr. Crouch and the other witnesses. It was to the effect that Leslie Crouch had spread abroad untrue stories with reference to assaults on him by parties about his and appellant's premises. His testimony in respect to the incident of the killing is not important, or specially different from that of the other witnesses, except that he says that Leslie Crouch and Henry Caveness on the night in question had a pistol, and that they took three cartridges out of it while sitting by their fireplace. The testimony of this witness was seriously contradicted by showing directly contrary statements on the examining trial, and that some of the statements made by Leslie Crouch he knew at the time to be untrue as well as that some of the parties had lanterns and other wholly variant statements. He says on his cross-examination that he testified this way on the examining trial because Leslie Crouch had told him to. He admits that the statement about the two men going to the Crouch house with lanterns was not true. There are a number of other contradictions in his testimony which are unnecessary to set out. Appellant showed by William Ellebracht that he remembered the circumstance of the homicide in question, and that before this appellant had told him that he might as well sell his corn as somebody was stealing it; that this was some three or four weeks before the killing.

The testimony of Mrs. Joy is largely corroborated by that of appellant, which will hereafter be fully set out, and was particularly positive as to Leslie Crouch and Henry Caveness having a pistol in her house and...