Miller v. State, 16660.

• Decision Date: 02 May 1934
• Docket Number: No. 16660.,16660.
• Citation: 71 S.W.2d 516
• Parties: MILLER v. STATE.
• Court: Texas Court of Criminal Appeals

71 S.W.2d 516

MILLER v. STATE.

No. 16660.

Court of Criminal Appeals of Texas.

May 2, 1934.

Commissioners' Decision.

Appeal from District Court, Coleman County; E. J. Miller, Judge.

M. L. Miller was convicted of murder, and he appeals.

Reversed and remanded.

Baker & Baker, of Coleman, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The facts are, in substance, as follows: The appellant had leased a small farm of approximately 140 acres from M. H. Witt in the year 1932. The appellant and deceased entered into an agreement by the terms of which deceased constructed a small house on the premises with the right to live there, make a crop, and look after the appellant's property. The appellant was boarding at the home of the deceased. After some three or four months some disagreement arose between them, and the appellant proposed to either buy out the deceased or that deceased buy him out. It appears that they had reached an agreement by which the appellant was to purchase deceased's crop, but two or three days before the fatal difficulty he refused to comply with the agreement. On Sunday, July 2d, the mother of the deceased's wife and her little son were at the home of Everett Crowder, the deceased, when some unpleasantness occurred between deceased and his wife. She said that she was going to leave, and he told her that if she left to stay away and never come back. She and her child rode off on the appellant's horse, and the appellant also left the premises. They went to the home of the appellant's brother, Jessie Miller, remained there during Sunday night, which was the 2d of July, and it seems from the testimony that the appellant and Mrs. Crowder, deceased's wife, and her small child remained at Walker's residence during the night of July 3d. At about 5 o'clock in the morning, one Lancaster, who was a brother-in-law of the appellant, appeared at the Walker house and advised the appellant that the deceased and his father-in-law, Mr. Witt, were looking for him, and that they had a gun; that they had been at Jessie Miller's home and Crowder came in there, jerked the screen off, and asked where appellant was. They left, but in a little while they came back and inquired if Fayette Miller was there, and, when informed that he was not there, they seemed to doubt it and they were invited into the other room of the house to satisfy themselves. Thereupon, Hector Miller, brother of appellant, went to the home of appellant's father, where appellant had gone, and advised him (the appellant) that the deceased and his father-in-law were looking for him. After receiving this information, the appellant telephoned the sheriff's office asking for protection and instructed the officer where he was and where he could be found. About the time that the officers reached the home of appellant's father, the deceased and his father-in-law drove up and started in the house. The appellant's father, who was sitting on the rear porch, advised the deceased not to enter said house, but he did not heed his warning. He went to the rear of the house, opened the screen door, and went right into the kitchen, and from there into the dining room, and, as he was entering the living room from the dining room, the appellant shot him. The appellant testified to numerous threats which had been made by the deceased against him and which had been communicated to him, and that he was afraid at the time he shot the deceased that the deceased was going to carry said threats into execution. He also testified that, when the deceased started to enter the living room, he put his hand in his bosom, and, when he did so, he (the appellant) fired three shots in rapid succession, and, when he saw the deceased fall, he saw the butt of a pistol on the floor under his body. The appellant's mother testified that she was in the house at the time of the fatal shooting, and saw the deceased coming from the dining room to the living room, and she saw a small blue-barreled pistol in his hand, and that when he fell to the floor the pistol was lying beside his side;...