McCline v. State

• Decision Date: 29 November 1911
• Citation: 141 S.W. 977
• Parties: McCLINE v. STATE.
• Court: Texas Court of Criminal Appeals

141 S.W. 977

McCLINE v. STATE.

Court of Criminal Appeals of Texas.

November 29, 1911.

Rehearing Denied January 3, 1912.

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

Dan McCline was convicted of murder in the first degree, and he appeals. Affirmed.

Nat Llewellyn, for appellant. Frank Oltorf, Co. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

On January 14, 1911, the grand jury of Falls county, Tex., indicted the appellant for the murder of Rosa Tubbs, alleged to have been committed on September 6, 1910. The term of court at which the indictment was returned convened on January 9, 1911. The law requires, and we assume that it was done at this time, that the grand jury be duly impaneled on the first day of the term of court. From the record we gather that perhaps on the same day of the killing, if not, only a day or two later, the appellant was arrested by the sheriff of Falls county, and placed in the jail of that county and kept confined therein until his trial, which occurred on February 7, 1911. On his trial he was convicted of murder in the first degree, and the death penalty inflicted.

The evidence, without contradiction, shows: That the deceased was an unmarried woman about 25 years old. That she had four illegitimate children; the last one being born in the summer of 1910. The exact time does not appear. For some time prior to the killing, she and her three children lived with her married sister. The appellant also lived with this sister. There were four rooms to the house. One was a kitchen, the other three bedrooms. The appellant stayed in one of these bedrooms, the deceased and her children in another, and her sister and brother-in-law in the other. The deceased went to this sister's house some time in about January, 1910, and continuously lived therein until after the birth of her last child in the summer of 1910. The sister and brother-in-law denied that appellant "kept" her while there. One of the witnesses testified that the deceased claimed that one Jones—not the appellant —was the father of the illegitimate child which was born while she was living at her sister's in the summer of 1910. No one testified, and the record does not disclose, that appellant was the father of that child. The appellant is shown to have been very anxious to marry the deceased, and that while she stayed at her sister's she agreed to marry him as soon as she recovered after the birth of that last child. That while she was there the appellant looked after her and supported her. As soon as she recovered from the birth of the child, she refused to marry the appellant, and removed from her sister's, where she gave birth to the child, and where she had been staying, some miles distant; the exact distance not disclosed. The appellant claimed that she owed him about $50 for what he expended for her while she was at her sister's awaiting the birth of her child. She disputed this, claiming that she owed him only $4.50.

The deceased left her sister's, where she and appellant had been staying, on Friday before the killing on the following Tuesday about noon. On Monday appellant told deceased's sister, where he was staying, in the presence of her husband and another sister of deceased, to go over to where the deceased was and tell her to come home, and if she did not come home he was going to kill her. This sister on that day went to the deceased and delivered appellant's message. On Monday night, the night of the same day, appellant himself got in his wagon, went from where he was over to where deceased was, hunted her up, called her out of the house where she was, and, after each spoke to the other, he told her that she had not kept her promise to marry him. She replied: "I know I promised to marry you; but you told me my ways don't suit you, so it is best for us not to marry." He then asked her what she was going to do about what she owed him. She asked him how much she owed him, and he replied about $50, he reckoned. He then left her, bidding her good night, and stated that he would be back over there the next day. The next day he did go back over there with his wagon, armed with a six-shooter concealed about his person. He reached where she was some time in the morning of Tuesday, stayed around about where she and others were picking cotton, and talked to her and them. He remained about them for some hours, and until the deceased and others started off to the house to get their dinners. The question again came up between them about her promise to marry him. She admitted that she had made such a promise, but that she was not going to marry him, and, after canvassing this matter between them, she definitely announced to him that she refused to marry him or go back to where he was. The question also of what she owed him was again discussed, he claiming she owed him about $50, and she claiming that she owed him only $4.50; and at that time she made arrangements with her employer in appellant's presence to pay him what she admitted she owed him. She then started off to the house with others to get her dinner. In going to the house it was necessary for the parties to go through a wire fence. When the deceased and others started off, appellant followed her. After getting through the fence, only a short distance from where they had been conferring, he said to her: "Didn't you promise to marry me? Ain't you going back up yonder with me?" She replied, "No, I ain't going back up yonder any more." He said, "I am going to kill you," and reached for his pistol. She threw up both hands and ran. He took after her, having some trouble in extricating his pistol, and did not do so until he ran her several steps. After he got his pistol out, he ran up to her, she running and screaming, put the pistol almost against her back, and shot her. He was so close when he fired this shot that the flame from the pistol caught her clothing afire and it blazed up. Some of the witnesses, soon after she fell from the effect of this shot, had to take water and pour on her clothes to extinguish the fire. When she fell, the appellant walked around to her head, which she raised up apparently to look at him. He thereupon put the pistol close to her head or neck and fired again, striking her in the neck, and killed her instantly.

There were several eyewitnesses to the killing. There was no dispute as to the facts of the killing. There were also several eyewitnesses who heard the conversations between the appellant and the deceased that day, and also the preceding night when he went to see her. The appellant himself did not testify. After the killing he got in his wagon and went back to where he was staying at the deceased's sister's. Upon reaching the place, he met some persons to whom he told that he had killed the deceased. The parties, not believing him, exclaimed to him: "Oh! You have not." He replied: "Yes, I have. I broke her neck. I am satisfied she is dead." While he was telling this to one of the witnesses, another came up and heard it and said to him, "Yes, you have killed her." He replied: "Well, here I am. I tried to phone for Mr. Poole (who was the sheriff of Falls county). I have killed her, and I am sorry I done it, but I had it to do." He further said that he was a good able-bodied man, and they could hang him if they wanted to, or he could work it out. He said: "I am going to turn myself over to the law." That he "had promised himself that he would do it (kill the deceased) if he had to."

We think the evidence, without doubt, shows that the appellant murdered the deceased with malice aforethought; that he had deliberately planned to kill her if she refused to marry him; had so threatened and sent her word, and, after thus determining in his own mind while he was calm and long before the killing, he deliberately, willfully, and with malice aforethought executed his previously formed design and threat and killed her in a cruel manner.

On February 6, 1911, before the trial was had on the next day, the appellant made two motions, one to quash the indictment, alleging as grounds therefor that he (the appellant) was a negro, a person of African descent; that the jury commissioners appointed to select the grand jury, which found and presented the indictment against him, selected no person or persons of African descent known as negroes to serve on the grand jury, but, on the contrary, did exclude them therefrom; that the grand jury was composed exclusively of white persons, and while about one-fourth of the population and of the registered voters in Falls county were negroes or persons of African descent, and who were qualified to serve as such grand jurors, they were excluded therefrom on the ground of their race and color, and have been so excluded from serving on grand juries in said county for a great many years, which is a discrimination against the defendant; and that such discrimination is a denial to him of the equal protection of the laws and of his civil rights guaranteed by the Constitution of the United States. This is in full, substantially, the allegations of appellant in this motion. He also at the same time made a motion to quash the special venire summoned to try him in this particular case on substantially, if not literally, the same grounds as the other motion above stated to quash the indictment. In each of these motions he concludes them with this, "All of which the defendant is ready to verify," and signs and swears to each motion before the clerk of the court.

The bill of exceptions to the action of the court in overruling both of these motions shows that in the bill he quoted each of his said motions, and that he introduced, and that the court heard, certain evidence on each of said motions, which was all of the evidence that he introduced or offered to introduce on the subject.

Under our law at each term of the district court the judge thereof is required to appoint...