Mims v. State

• Decision Date: 07 October 1953
• Docket Number: No. 26509,26509
• Citation: 159 Tex.Crim. 180,261 S.W.2d 727
• Parties: MIMS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 727

261 S.W.2d 727

159 Tex.Crim. 180

MIMS v. STATE.

No. 26509.

Court of Criminal Appeals of Texas.

Oct. 7, 1953.

No attorney on appeal for appellant.

Wesley Dice, State's Atty., of Austin, for the State.

GRAVES, Presiding Judge.

The offense is murder; the penalty assessed is confinement in the state penitentiary for a term of 12 years.

In the brief of the State's Attorney, the facts are summarized as follows:

'The homicide occurred on the night and early morning of March 16 and 17, 1952, in the town of Odessa, in front of the colored Elks Club in a section commonly known as the 'flats.' According to the State's version, the deceased, Mack Swoopes, who was operating the colored Elks Club, first had a difficulty with a colored lady who came to the club to find her husband. During this difficulty, one Frank James interceded, and the deceased, Swoopes, slapped James and pulled his gun. At this time the appellant, who was a colored city officer, and his companion, Fred W. Calloway, another officer, appeared in front of the Elks Club, where the deceased was standing with a gun in his hand. Officer Calloway told the deceased to give him his gun and deceased refused, and thereupon Officer Calloway, in an attempt to take the gun away from deceased, was accidentally shot in the knee. When Officer Calloway was shot, the appellant went across the street to call for help, and during the absence of appellant, Officer Calloway took the gun from the deceased and placed the same, along with the officer's gun, on the curb. When the appellant returned from calling for help, Officer Calloway was holding on to the deceased Swoopes because of his injury, and the actual trouble between the deceased and Officer Calloway had ceased. The deceased then told the appellant that he, appellant, had been wanting this to happen for a long time, and that if the appellant would put down his gun he would whip him all over the 'flats.' Thereupon, the appellant shot the deceased Swoopes four times, one bullet striking the deceased in the head, one in the arm, and the other two in the deceased's body. According to the State's version, the deceased was unarmed at the time he was shot by the appellant and was making no move towards the appellant whatsoever.'

The record presents only one formal bill of exception, which complains of the action of the trial court in sustaining the State's objection to certain questions propounded to the appellant's witness, Fred W. Calloway,...