Mickle v. State

• Decision Date: 26 March 1919
• Docket Number: (No. 4957.)
• Citation: 213 S.W. 665
• Parties: MICKLE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 665

213 S.W. 665

MICKLE v. STATE.

(No. 4957.)

Court of Criminal Appeals of Texas.

March 26, 1919.

On Motion for Rehearing, June 27, 1919.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

Ivie Mickle was convicted of murder, and appeals. Reversed and remanded.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was convicted in the district court of Galveston county of the offense of murder, and his punishment fixed at death.

Appellant is a negro and was convicted of the murder of a white man under such circumstances as to make it a case in which race feeling and prejudice could very easily play a prominent part in the disposition of the case. The parties to the killing were strangers to each other as far as the record discloses. Deceased was a street car conductor, and his car was boarded on the night of November 15, 1917, by the appellant, who was eating a sandwich. When asked to pay his fare by deceased, appellant said he did not want to get his clothes greasy, and deceased did not then further press for payment of the fare, but a little later again approached appellant and asked for payment, and was told by appellant that he would pay when he got ready. Shortly thereafter, deceased stopped his car and informed appellant that he must pay or get off. Some friend of appellant offered to pay, and did pay, the fare for him over the apparent protest of appellant, who said he had plenty money of his own. A little later the duties of the deceased called him away from the rear platform of the car, where all the controversy had taken place and where appellant was still standing, and, when deceased returned to said rear platform, he found appellant standing in the place where the conductor usually stands to help passengers on and off the car. Thereupon deceased requested appellant to move, and most of the witnesses say that the request was refused with the statement by appellant "that he would not move for no damn white man." According to all the witnesses, either at this moment, or just subsequent and after another remark by appellant, deceased caught hold of the appellant and attempted to shove him off the moving car. There was a scuffle, a momentary clinch between the men, and appellant was forcibly ejected from the car, falling on the ground on his side. He at once sprang up and ran after the moving street car, and all the witneses but one agree that he caught the car, sprang upon the step, struck the conductor one blow, then jumped down, and ran away. The one witness who disagreed about this matter said that he was on the rear platform and saw a knife in appellant's hand just before the deceased attempted to put him off the car, and that when the parties clinched, and just before the appellant was thrown off, he saw him cut deceased twice. It was undisputed that deceased was cut to the cavity in two places on his breast, and that he died in a few moments after the difficulty.

Appellant asked for a continuance because of the absence of two witnesses, stating in his application that said witnesses were present and would testify to the facts set out which would tend to exculpate him. The state was permitted to traverse said application, not only as to diligence, which is permissible under the statute, but also as to the fact of the presence of said witnesses at the scene of the killing, and was permitted to introduce witnesses on a hearing of said traverse for the purpose of showing that said absent witnesses were not present at the scene of the difficulty. This was error on the part of the trial court. Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925; Lane v. State, 28 S. W. 202; Rucker v. State, 7 Tex. App. 549; Testard v. State, 26 Tex. App. 260, 9 S. W. 888; articles 612 and 613, C. C. P.

The court should also have permitted the filing of appellant's supplemental motion for a continuance, and, if the facts therein stated were true and not controverted by the state, the case should have been postponed or a change of venue ordered. The appellant is a negro, his victim a white man, and it is alleged that such publicity had been given the state's side of the case during the barely 10 days elapsing from the date of the homicide to the trial that a strong public...