McCleary v. State

• Decision Date: 27 October 1909
• Citation: 122 S.W. 26
• Parties: McCLEARY v. STATE.
• Court: Texas Court of Criminal Appeals

122 S.W. 26

McCLEARY v. STATE.

Court of Criminal Appeals of Texas.

October 27, 1909.

Appeal from District Court, Falls County; Richard I. Munroe, Judge.

Nat McCleary was convicted of an unlawful homicide, and he appeals. Reversed and remanded.

Nat Lewellyn and Spivey, Bartlett & Carter, for appellant. F. J. McCord, Asst. Atty. Gen., and Tom Connally, Co. Atty., for the State.

RAMSEY, J.

Appellant was convicted in the district court of Falls county on the 24th day of February, 1909, and his punishment assessed at two years' confinement in the penitentiary. From such judgment of conviction he appeals to this court, and asks that same be reversed for many reasons.

The facts in evidence showed that appellant, who was a young white boy about 19 years old, on or about the 25th day of October, 1908, in the village of Durango, in Falls county, shot and killed John Shaderick. Shaderick was a negro man some 35 years of age. Appellant established a good reputation in the community where he was raised as a peaceable, quiet, inoffensive man. The testimony of the appellant tended to establish the fact that the deceased was a dangerous and quarrelsome man, though this was contested by the state, which introduced some evidence to the effect that his reputation was good as a peaceable, quiet, and an inoffensive citizen. The evidence showed that on the day of the homicide appellant, with Bonner Peevy, E. C. Stuart, and Dallas Stuart, left the town of Lott in a buggy, and some distance from this town, on the way to Durango, they passed Will Reed, who was in a wagon, in which was also the deceased and another negro. Soon after passing the wagon containing Reed and the negroes, appellant and one of his companions went back to the wagon to get some whisky. The occasion of their going back and what occurred is disputed in the testimony; but it is conceded that there was some rough language used between the appellant and deceased. Appellant's witnesses testified that deceased called him a son of a bitch and attempted to strike him with his knife. This was probably between 4 and 5 o'clock in the afternoon. The parties named above continued their journey to Durango, where appellant obtained a gun and made inquiry for some large shot, saying that he wanted to kill some ducks. Some of the witnesses testify that appellant walked with the deceased, Shaderick, and another negro, from near a man named James' place down to where the stores were situated in the village of Durango. Deceased was shot three times. One shot was over the eyebrows, another on the cheek, and the third near the temple.

Appellant, by his testimony, if believed, makes a case of self-defense. He explains his possession of the gun with the statement that he intended to see Shaderick and demand an apology, and apprehended that, as a result of his mission, deceased might assault him, and for his protection, and not for any other purpose, he had provided himself with a gun; that later on he felt that, if he exhibited the gun, the negro might think he was looking for trouble, and for this reason provided himself with a pistol, and with this on his person approached Shaderick, and said to him more than once that he thought that he owed him an apology; that, on making this statement to deceased the third time, deceased turned towards him, put his hand in his pocket, and said he would apologize to no white man, with an oath, and started, as he believed, with a weapon in his hand, to advance upon him; and that he shot Shaderick in the belief that his own life was in danger. Appellant's testimony to this effect was somewhat strongly supported by the evidence of E. C. Stuart, Bonner Peevy, and one Stevens, and his contention found some support, also, in the testimony of Will Reed. The testimony of most of these witnesses related to the direct issue of self-defense, and was in substantial accord with the statement and testimony of appellant, and was, of course, of the highest importance to his defense.

The county attorney, acting for the state, sought to impeach these witnesses, and not wholly without success, by producing and having them identify, and subsequently offering in evidence, written statements, some of which were made on the examining trial, soon after the tragedy, and others made before the grand jury. In some of these statements, one of the witnesses, at least, who had testified to the acts of deceased in putting his hand in his pocket and advancing on appellant, testified on the examining trial that at the time of the shooting, or at any event at the time the first shot was fired, and just before, he did not and could not see deceased. The testimony of other witnesses positively affirmed some matters on the trial as true which were not mentioned at all as having occurred in their testimony on the examining trial.

1. In this state of the case, the court instructed the jury as follows: "There is testimony before you tending to contradict or impeach the witnesses Will Reed, E. C. Stuart, Bonner Peevy, and Mose Stevens. As to the effect of said impeaching or contradicting testimony, if any, you are instructed that you can only consider the same for impeachment purposes, if at all, and for no other purpose." We think, considered altogether, that this charge must be held to be on the weight of the evidence. Santee v. State (Tex. Cr. App.) 37 S. W. 436; Stull v. State, 47 Tex. Cr. R. 547, 84 S. W. 1060.

In the first-cited case the court gave the following charge: "You are further instructed that evidence has been admitted before you tending to show that, about the time defendant is charged to have received and concealed the property charged in the indictment, he received property belonging to another person than R. K. Lane that was stolen. You can consider said testimony in determining what knowledge the defendant had with reference to the property described in the indictment at the time he received or concealed the same, if he did receive or conceal it, and for no other purpose." After adverting to some other errors in this charge, Judge Henderson, speaking for the court, uses this language: "Now, in this connection, the court, in the charge above quoted, tells the jury that the evidence admitted tended to show that defendant, about the time charged in the indictment, received the Felson goods, and...