Miller v. State

• Decision Date: 13 November 1907
• Citation: 105 S.W. 502
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

105 S.W. 502

MILLER v. STATE.

Court of Criminal Appeals of Texas.

November 13, 1907.

Appeal from District Court, El Paso County; James R. Harper, Judge.

Max Miller was convicted of murder in the first degree, and he appeals. Reversed and remanded.

M. W. Stanton, F. G. Morris, and Geo. O. Sweeney, for appellant. F. J. McCord, Asst. Atty. Gen., and George Estes, Dist. Atty., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the first degree; his punishment being assessed at confinement in the penitentiary for life.

He was charged with the killing of J. F. Turley on the night of October 1, 1906, and the evidence shows that it occurred in a saloon belonging to J. F. Manning, and that appellant was a saloon keeper in the city of El Paso, and had been conducting such business for several years prior to the tragedy. He put in evidence his general reputation as being a quiet peaceable man, and sustained it by witnesses. On the day preceding the homicide at night it was "pay day," and appellant is shown by some of the witnesses to have been drinking considerably, occasioned largely by the fact that, as the parties would pay their bills, they would invite him to drink. Leaving his place of business after night, he started home, and, on reaching a point opposite the saloon, or "family" beer saloon of Manning, his attention was attracted by a woman's voice in that saloon. He crossed the street, and asked Manning if his, appellant's, wife was in the saloon. Manning replied that she was, and made some statement to the effect that he had been trying to get her away. It seems that appellant understood that she had been detaining Manning for some time by remaining in the saloon; Manning desired to close up. Manning suggested that he would go into the saloon and tell Mrs. Miller to come out, but appellant requested Manning to hold a package which he had in his hand, and that he, appellant, would go in and bring his wife out. Upon entering the saloon, he found his wife standing with a beer glass in her hand, and he reproved her for being in the saloon, and invited her out. Appellant contends that she resisted, but finally they left and went on up the street, and during their controversy, or quarrel, in the street, appellant struck her with a pistol. They then proceeded home, and en route an altercation arose between appellant and one Meyers, and it is stated that appellant presented a pistol towards and threatened to shoot him. What occurred at this point is unnecessary to be stated further. Upon arriving at their home, appellant and his wife continued their quarrel, he reproving her for going into the saloon, especially for keeping the saloon open and Manning in waiting. She denied keeping Manning in waiting, and denied buying beer for "bums" around the saloon, as appellant charged. To satisfy her, they returned to Manning's saloon in about 10 or 15 minutes. There were four men in the rear room of the saloon at the time they entered, and there is conflicting testimony as to whether Miller saw them at that time. They were sitting at a table, playing cards. Appellant contends he saw no one in the saloon at the time he returned with his wife except Manning, although the four men were in the rear or wineroom card playing. All of these were strangers to him, and no conversation had occurred between appellant and them on his first visit to the saloon. All the controversy on the first visit to the saloon while in it seems to have occurred between appellant and his wife. When appellant and his wife returned to the saloon, they had a controversy and talked with Manning near the south end of the bar in the front room. In regard to this conversation, Manning states substantially that appellant seems to have understood that he, Manning, charged Mrs. Miller with keeping him waiting when he wanted to close the saloon. The counter or front bar extended through the partition wall into the rear room to the north, where the deceased and the other three parties were. There was no conversation between appellant and the men in the wineroom for some time after the appellant and his wife reached the saloon on the second visit, nor until appellant charged his wife with hanging around the saloon, buying beer for "bums." When this charge was made, one of the men in the wineroom, named Censor, remarked that "Mrs. Miller never bought any beer for us," referring to the parties in the rear room. Miller replied by saying that he should not "butt in," and the state introduces evidence to the effect that he, appellant, applied a vile epithet to Censor. The conversation was continued between parties in the front part of the saloon, and nothing more was said by the parties in the rear room for a minute or two, when appellant again made a similar charge in reference to his wife buying beer, when deceased replied that Mrs. Miller had not bought any beer for them, and that they were working men and paid for their own beer. The state at this point contended that appellant applied to deceased a vile epithet, and drew his pistol. The contention of appellant at this point is that, when he replied to deceased, he did not call him a vile name, and that the deceased sprang up and applied a vile epithet to him, appellant. The testimony is in conflict at this point. There is also a conflict in the testimony as to what time Miller drew his pistol; the state contending that he drew it at the time he spoke to deceased, appellant that he did not draw it until afterward. There is some confusion about the testimony as to whether the parties could have seen appellant with the pistol, even if he had drawn it. The testimony for the state is to the effect that, when appellant drew his pistol, deceased jumped up, advanced towards the door between the rear room and the front room, but suddenly turned to the left, and passed behind the bar in a crouching or bending position. It is further in testimony for the state that before he crouched or bent down deceased put his hands on the front bar near the partition, and talked to appellant, and requested him not to shoot, and then dodged down behind the counter to avoid being shot by appellant.

The contention of the defense at this point is that, when the deceased passed behind the counter, he was seeking to get a pistol, and it is further shown in this connection that it is customary to keep pistols in these saloons behind the counter. The testimony seems to be practically harmonious to the effect that appellant looked over the counter and told the deceased to get up several times; and it is further shown by the state that deceased said he was unarmed and did not want to fight, or words to that effect, and that appellant told him a number of times "to get up then." It is further shown that appellant was during the time looking over the counter, holding his pistol in position, and that he could have shot at any time while so looking, but did not. Finally deceased did straighten up, and, as he did so, a shot was fired which resulted in deceased's death. Appellant immediately stated to him to get up, "You are not hurt," or words to that effect, and perhaps repeated the statement several times, then walked around behind the bar where deceased was, turned him over, and saw blood, and left the saloon. The defense's testimony is to the effect that he believed that the deceased was after a pistol when he went behind the bar. It is further in evidence that the appellant was never out of the front room, and that the deceased left the table where he was sitting with the other parties in the rear room, and passed in behind the bar until he was some distance in the front room. Appellant claims at the time he was only holding the pistol in readiness, thinking that deceased had gone behind the bar to get the pistol, and that he did not intend to use his pistol unless forced to do so by the conduct of the deceased, as a means of defending his life. And it is further contended by appellant that at the time the shot was fired the pistol went off accidentally, and that he did not intend to shoot when it was fired. It was also in evidence that appellant put his foot on a spittoon and looked over the bar at deceased, and that he could have shot the deceased at any time while he was under the bar; that there was nothing to prevent him from doing so. There is also evidence in the record to the effect that appellant was drinking on the night of the homicide, and had been drinking pretty much all day, one of the witnesses swearing that he had taken, perhaps, as many as 50 drinks of beer, wine, and whisky. Another witness testified that just after the homicide he undertook to interview appellant in regard to it, but he was in such a condition he could make no coherent statement; that his conversation was disjointed and unintelligent. Other evidence was introduced that he was drunk.

This, perhaps, is a sufficient statement to call in review questions suggested for reversal. Appellant presented an application for a change of venue, which was overruled, and a bill of exceptions reserved. This...