Lawrence v. State

• Decision Date: 23 June 1933
• Docket Number: No. 15550.,15550.
• Citation: 82 S.W.2d 647
• Parties: LAWRENCE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 647

82 S.W.2d 647

LAWRENCE v. STATE.

No. 15550.

Court of Criminal Appeals of Texas.

June 23, 1933.

Rehearing Granted March 6, 1935.

Concurring and Dissenting Opinions Filed May 1, 1935.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

A. B. Lawrence was convicted of murder, and he appeals.

Reversed and remanded.

E. B. Pickett, Jr., of Liberty, H. E. Kahn and E. T. Branch, both of Houston, and A. W. Marshall, of Anahuac, for appellant.

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

LATTIMORE, Judge.

Conviction for murder; punishment, 5 years in the penitentiary.

Upon rehearing, the original opinion is withdrawn and the following substituted therefor: Appellant owned a large ranch on which he lived. No other dwellings were near his. Lundy rented land from appellant for rice cultivation, and his house was nearest that of appellant. The rice had been cut and shocked. Ponds, ditches, levies, laterals, and much water were around the scene of the shooting, which was in Lundy's rice field not far from the edge of appellant's pasture. The growth between Lundy's field and appellant's house was sparse and scattered, in some places more than others. Appellant's wife was in Houston. She claimed that he came home from Houston on November 16th. No one else seems to have lived at appellant's house. No effort was made to show the presence at or around said house or premises on November 17th of any person save appellant himself. There was a hard rain on the night of the 16th.

On the morning of November 17th, three boys were going across appellant's pasture toward Lundy's rice field. There was one shotgun in the crowd. Emory Fisher, one of said boys, was sixteen years of age, and related to appellant. At a certain point Fisher took said gun, left his companions, and went some distance away and shot at some ducks on a pond. Just after he fired, the sound of a rifle shot was heard to come from at or near appellant's house. Witnesses located the sound as coming from near a big gate south of the house; the boys being at the time in a general southerly direction from said house. The bullet from this rifle shot knocked up water in said pond near Fisher. He started back toward the other boys. Three more rifle shots were fired from apparently the same place. The other boys said they heard the bullets sing. One of them came so close to Fisher that he turned his head and called out to the others: "The old man like to have got me that time." Testimony was to the effect that from the big gate mentioned parties could be seen down near where the boys were. Evidently the party shooting could see Fisher, as evidenced by the nearness of the bullets to him. The record is wholly bare of any showing that Fisher, from where he was at the time he was shot at, could not see who was doing the shooting. In bill of exception No. 2, complaining of the admission of the statement quoted above, it is said that in overruling the objection the court stated to appellant's counsel that he could not tell what the deceased saw or knew. The witness testifying to this statement was the first witness introduced on the trial, and testified to said statement almost in the beginning of his testimony.

It is observed that when called on to review rulings of trial courts in such matters, we must pass on the objections as same appear in the record, in the light had by the trial court when he was called on to rule, as far as we can get it. The objections to this testimony was, first, that the statement was not made in the hearing of appellant; second, that no person was named or identified in said statement. The first ground of objection was clearly untenable. The statement was plainly res gestæ. The bullets were singing past the heads of Fischer's companions and going in close proximity to him when the statement was made. Four rifle shots were fired, as testified to, from near the big gate up by appellant's house. In five minutes thereafter, as estimated by a witness, another volley of five rifle shots were fired at the same boys, and beyond question by the same party, who seemed at this time a little nearer the boys than when the first shots were fired. The first shot of this second volley sent a bullet into Fisher's back going through his body. As one of his companions bent over the fallen boy, another bullet whizzed between his legs and buried itself in the ground. Fisher was carrying the only gun had among the three boys at the time both volleys of rifle shots were fired. As said above, Fisher knew appellant well; was related to him. Appellant was sixty-seven years old and would reasonably be referred to as an old man. The shooting was all from the general direction of appellant's house and at a party within the view of the one shooting, and there seems no reason to believe but that the party shooting was likely within the view of Fisher when he made the statement. When the language used is such, or used under circumstances which make reasonably evident who the party is therein referred to, it would be admissible testimony, and its weight would be a question for the jury. Many cases appear where no name was used in the res gestæ statements held admissible, but in such cases the surroundings sufficiently show to whom reference is made. Thompson v. State, 19 Tex. App. 593, 613; Kennedy v. State, 19 Tex. App. 618, 631; Means v. State, 10 Tex. App. 16, 23, 38 Am. Rep. 640; Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823; McInturf v State, 20 Tex. App. 355; Shumate v. State, 38 Tex. Cr. R. 266, 42 S. W. 600; Foster v. State, 8 Tex. App. 248, 251; Lewis v. State, 29 Tex. App. 201, 204, 15 S. W. 642, 25 Am. St. Rep. 720; Girtman v. State, 73 Tex. Cr. R. 158, 162, 164 S. W. 1008; Jeffries v. State, 9 Tex. App. 598, 602; Hardison v. State (Tex. Cr. App.) 85 S. W. 1071.

The rule laid down in Wooley v. State (Tex. Cr. App.) 64 S. W. 1054; Gray v. State, 47 Tex. Cr. R. 375, 377, 83 S. W. 705; Clark v. State, 56 Tex. Cr. R. 293, 297, 120 S. W. 179; Clements v. State, 61 Tex. Cr. R. 161, 134 S. W. 728, and other cases, relates to the impropriety of receiving testimony reflecting the undisclosed motives and intentions of the injured party causing him to do certain things whose doing was relied on as affording justification for the alleged penal act on the part of the accused and has no application here. We have no doubt of the admissibility of said statement as against the objection urged.

The state offered testimony showing that somewhere in the neighborhood of 10 o'clock on the morning of November 17th, an officer arrived at the scene of the shooting. He presently went up to appellant's house, finding no one at same. He looked around the premises. Out near the big gate referred to he found tracks made since the rain, but not distinct enough to enable him to identify. Just beyond the gate was grass, and on this grass some yards from the gate he found three freshly shot shells. The officer went in the house and found in the corner of a room a rifle. He expressed the opinion that the shells he found would fit this rifle. Looking further he found in the horse lot tracks showing where a man had saddled a horse, led him to the gate, and there gotten on him. This would indicate that the tracks in the horse lot were made after the tracks at the big gate, inasmuch as the officer testified that after observing the place where the man got on the horse, he presently saw appellant out east of his house on horseback having some stakes in his arms. He said he waived to appellant who came up, got off his horse, and when he did so the officer compared the tracks then made with those made by the man who led the horse from the lot, and he said they were exactly alike. The officer further testified that there was a telephone in the house. He said no one was called from said house after he got there, but that some thirty minutes later appellant's children began to arrive from a town some ten miles away where they lived. The record is bare of any showing of who gave these children the information concerning appellant which led them to come to the premises. One of them testified that he had heard that appellant was charged with the killing of Fisher. The record does not show that any charge had been made against appellant until after the officer took him away from the premises. Parties who examined the premises and made observations testified that from the big gate mentioned persons down in the vicinity of where the boys were could be seen.

The state offered testimony that on the day before this killing appellant had shot with a rifle at two men who were duck hunting on his place. Dickerson, one of these men, testified that he was calling ducks up to him; suddenly they flew; he raised up to see who had disturbed them, and appellant from some weeds shot at witness, the ball passing near his head. This witness said appellant was too far away to be shot at with a shotgun, so he saw nothing else to do except to fall down for protection in some mud and water behind a levee. From this point he heard a man named Stout shoot at some ducks and saw appellant go toward Stout and later shoot at him with a rifle. Dickerson also testified that at a prior time he and another were hunting ducks in the same vicinity, and appellant rode up, called them to him, cursed them, and demanded to know what they were doing and if they did not know that he did not allow hunting on his place. He had his rifle in his hand. He said to the parties that he ought to have killed them from the hillside, but that he would give them a chance. He ordered them to get their decoys and get away. Witness said he proceeded to gather his decoys, and appellant, who had ridden some distance, fired with his rifle and broke the decoy in the hand of witness. Stout, the other duck hunter, testified that appellant shot at him while he was hunting in Lundy's rice field. Mr. Ivey testified that...