Monroe v. State, 46582
| Decision Date | 14 November 1973 |
| Docket Number | No. 46582,46582 |
| Citation | 501 S.W.2d 639 |
| Parties | Jimmie W. MONROE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
E. Brice Cunningham, Dallas (On appeal only), for appellant.
Henry Wade, Dist. Atty., Jerome L. Croston, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
REYNOLDS, Commissioner.
A jury trial conviction for the offense of murder with malice, for which punishment was assessed at fifteen years confinement, is challenged by two assigned grounds of error. The first ground, which is sustained, is that the trial court erred reversibly in refusing to charge the jury on the offense of murder without malice; the second ground, which becomes moot, is that there is insufficient evidence of intent to commit the offense of murder with malice. Reversed and remanded.
On the night of November 28, 1969, Grover David Watley died on a vacant lot in Dallas after being struck by two of three bullets fired from a revolver. That appellant, Jimmie W. Monroe, shot and killed the deceased is not only undisputed, but admitted; disputed, however, are the circumstances of, and the attendant witnesses to, the homicide.
The state's evidence of the events culminating in the homicide was adduced from the deceased's wife, Florence Watley, and her friend, Catherine Anderson. Their account is that the two women went to the factory where the deceased and the appellant worked. While the two women were waiting for the deceased to quit work, the appellant appeared, made advances and used abusive language to Mrs. Anderson, who rebuffed the appellant. The deceased quit work and all parties, the appellant walking ahead, started toward their respective homes located in the next block across the street. Crossing the street onto a vacant lot that sloped upward, the deceased remonstrated with the appellant, who then was walking backwards facing the deceased, for his conduct toward Mrs. Anderson. The appellant at a distance of six feet from the deceased pulled a revolver from his right pocket with his right hand and fired three shots, the time intervals between which are not shown. At the first shot, the deceased, who previous thereto had stopped still, clutched at his chest and fell backwards. Mrs. Watley went to a nearby house and called an ambulance. Both women agreed that the only other person present was a teenage boy.
The city police officer first on the scene testified that he found no weapon on the deceased and that the only witnesses he could locate were a teenage boy, who did not testify, and the two women. Another city police officer deposed that he heard a broadcast of the occurrence giving the appellant's name and started for the scene. Enroute, he saw the appellant with his wife and small child approximately five to six blocks from the scene and 300 feet from a bus stop. When he stopped his police car at the curb, he observed the appellant give the revolver to his wife. The appellant was arrested and the revolver retrieved. The arresting officer stated that the appellant was not wounded.
According to the pathologist, the deceased met his death from the two bullet wounds. There was no evidence of powder residue in or about the wounds, indicating that the shots were fired from a distance greater than three feet. One bullet entered approximately mid-chest and ranged downward at a forty-five degree angle; the other bullet entered the right abdomen and ranged downward at about one-half the angle of the first bullet. The pathologist agreed that the nature of the wounds is consistent with the state's theory that the appellant was standing on the sloping ground above, and at a distance of some six feet from the deceased when the shots were fired. The pathologist found the deceased's blood to contain ethyl alcohol in an amount exceeding legal intoxication, estimating that about fifteen beers, or nine or ten mixed drinks, would be required to produce the quantum of alcohol present. This approximation is at variance with the testimony of Mrs. Watley, who stated the deceased had drunk only four or five cans of beer some six hours before his death. Neither she nor Mrs. Anderson thought the deceased was intoxicated.
The appellant testified to his account of the homicide. He had quit work at the factory earlier in the afternoon after being paid. He had gone to pay his rent, taking his revolver as protection against robbers. He had put the revolver in his left pocket since he was left handed. As the appellant was returning to his home, walking along the street opposite the factory, the deceased called to him from a parking lot across the street and next to the factory. The appellant crossed the street and approached the deceased, who stated that he wanted to pay the five dollars he had borrowed previously from the appellant. The appellant replied that the deceased could pay the money the next day. The deceased put one hand in his pocket; he had half a bottle of wine in his other hand, and he was drunk. Repeatedly insisting that he wanted to pay the debt then to each reiteration by the appellant that it could be paid the next day, the deceased advanced on the appellant, who backed away. The deceased put the wine bottle on the ground, pulled a knife from his pocket, continued to advance on the appellant, and opened the knife. The appellant, questioning why the deceased was using the knife and '. . . pleading not to come up on me with that knife,' then pulled and cocked the revolver with his left hand. The appellant affirmed that he was afraid for his life, and he stated that he was scared. The appellant, while running backwards, tripped and fell on his rear. The deceased '. . . was coming over with the knife . . . cutting at my throat' and hit the appellant's hand. The appellant fired three shots. After the first shot, the deceased kept advancing; the appellant shot again and the deceased fell to his knees; and the appellant did not know when he fired the third time. Neither Mrs. Watley nor Mrs. Anderson was present, and the appellant and the deceased were the only persons on the lot during the encounter.
Because he did not know what the deceased's people might do to him, the appellant left the scene. He went home, got his wife and small child, and the three of them went to a bus stop to get a bus to city hall where he was going to surrender. Before the bus arrived, he was arrested.
The testimony of the appellant's...
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