Martin v. State

• Decision Date: 05 March 1924
• Docket Number: (No. 7928.)
• Parties: MARTIN v. STATE.
• Court: Texas Court of Criminal Appeals

259 S.W. 572

MARTIN v. STATE.

(No. 7928.)

Court of Criminal Appeals of Texas.

March 5, 1924.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

Zennie Martin was convicted of murder, and he appeals. Affirmed.

C. C. Countess and P. H. Dougherty, both of Temple, for appellant.

Few Brewster, Dist. Atty., of Belton, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Bell county of murder, and his punishment fixed at 40 years in the penitentiary.

The brief on behalf of appellant urges only two errors; First, the refusal of a continuance; and, second, the admission of testimony of threats made by appellant.

The application for continuance was properly overruled. No process was applied for or issued for the absent witness. This was not diligence. There is a strong suggestion in the record that said witness had left the country and could not be found.

Two witnesses testified for the state that on the night of the killing and prior thereto appellant made repeated threats directed toward Joe Beavers, Frank Heard, and Randell Davis. The record is replete with threats of all kinds made by appellant on the night of the homicide not only toward the parties named but toward others. He threatened to cut the head off of a woman and to kill her and to set fire to her house in which there were several persons, and kill them all. The complaint directed at the threats made against Beavers et al. might be disposed of upon the ground that same were part and parcel of the conduct of the accused showing general malevolence, malice, and a heart regardless of social duty and fatally bent on mischief, under authorities cited in section 2072, Branch's Ann. P. C. However, we think the matter referable to another rule. Appellant and Joe Beavers were both contenders for the affections of Hester Green. She had lived with appellant, but recently before the homicide seems to have preferred the society of Beavers. On the night of the homicide appellant procured first a butcher knife, which he secreted about his person, and later a shotgun, with which armament he succeeded in getting Hester Green, her daughter, and the deceased, Rufus Hays, to leave the house of Beavers and return to their domicile. It was while going from Beavers' house toward the cabin occupied by Hays et al. that appellant made the threats directed toward Beavers, Davis, and Heard....