Moore v. State

• Decision Date: 26 April 1899
• Citation: 50 S.W. 942
• Court: Texas Court of Criminal Appeals
• Parties: MOORE v. STATE.

50 S.W. 942

MOORE v. STATE.

Court of Criminal Appeals of Texas.

April 26, 1899.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

Lou Moore was convicted of murder in the first degree, and he appeals. Reversed.

Cunningham, Cunningham & McCollum, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

The testimony for the state shows, substantially, that appellant Joe Ferguson, Lorran Cady, Jack Nelson, and Jack Moore, a brother of appellant, in 1895 were living in the Indian Territory. The Moores and Cady had formerly lived in Texas, in Llano county. About the 3d of September said parties left the Choctaw Nation, in the Indian Territory, in the vicinity of Coalgate, for Texas. Lou Moore and Jack Nelson left on foot, perhaps a day before the others. Lorran Cady, Jack Moore, and Joe Ferguson left in a hack. They were to meet in Dallas, Tex. Their mission to Texas was to rob Dutch storekeepers in Southwest Texas. On the 8th of September all the parties arrived at Dallas. About 12 o'clock on the 9th, Jack Moore, Joe Ferguson, and Jack Nelson left Dallas, with the hack, on their way west. Some time on that evening, Lorran Cady and Lou Moore (defendant) left Dallas for Eagle Ford on foot. About nightfall they went to the store of one Joe Meeks at Eagle Ford, six miles west of Dallas, and robbed him of some money; said parties being armed with pistols. They immediately left the store, going west in the direction of Ft. Worth. Meeks at once went to the house of Bradshaw, who lived some 200 yards distant, procured him, then got his buggy, proceeded to the telegraph station near by, and telegraphed to Ben Cabell, the sheriff, at Dallas, to meet them at the sheriff's office; and then proceeded rapidly to Dallas. On their arrival they were met by the sheriff and Ad Pate, a deputy sheriff. As speedily as possible, the sheriff detailed Pate and Meeks to go out on the Commerce Street Bridge road, which led in the direction of Eagle Ford, while he and Bradshaw went out on the Texas & Pacific Railroad trestle. They were to meet about a mile west of Dallas, where the Eagle Ford road crosses under the Texas & Pacific track. The sheriff and Bradshaw went on foot on the trestle track, while Meeks went in his buggy, and Pate rode one horse and led another for Cabell across the Commerce Street Bridge. When Pate and Meeks had proceeded about half way across the bridge over the Trinity, they met two footmen, coming into Dallas. As soon as they passed them, Meeks told Pate that they were the men. Pate handed the bridle of the horse he was leading to Meeks, who in the meantime had stopped his buggy, and immediately turned, and rode back, and overtook said two parties about the time or just as they got off the bridge at the foot of Commerce street. He attempted to arrest them, when they fired upon him. He fell from his horse, and immediately expired. The parties fled down the river. No trace of them could be obtained that night. Early the next morning it was discovered where one of the parties had crossed the Trinity river, leaving a pair of boots on the bank, and a knife was also found there. There was testimony tending to identify the boots and knife as Lorran Cady's. Lorran Cady, about two months afterwards, was captured in the Indian Territory by United States marshals. He resisted arrest, and was shot, and seriously wounded. He was taken to Paris, and there, after a week or so, died from his wounds. Lou Moore (defendant) was captured about two months afterwards at Waco, Tex. Jack Moore was also captured, but Joe Ferguson and Jack Nelson have never been arrested. Lou Moore was convicted as a principal, and the critical point in the case is as to his identification. Defendant introduced some evidence on this phase of the case, but mainly relied on the weakness of the state's case.

Appellant's first bill of exceptions is as to the refusal of the court to admit certain testimony on the cross-examination of Joe Meeks. The bill states: "That on his direct examination said witness testified that a short while after dark he was robbed in his store at Eagle Ford, six miles from Dallas by two men; that he immediately went to Bradshaw's, a couple of hundred yards, and got Bradshaw and his buggy, and drove as fast as they could to Dallas, stopping only long enough at Eagle Ford to send a telegram; went to the jail at Dallas, and stayed there about four minutes; then to the court house, and stayed about fifteen minutes for the sheriff; and ten minutes talking to the sheriff, and then back to the jail, one and one-half blocks, and immediately to the bridge, where he met two men walking leisurely along towards Dallas, not panting or apparently excited; that he recognized them from their size and appearance as the men who robbed him; that the men who robbed him left Eagle Ford on foot, going in the direction of Ft. Worth, and from Dallas." On this state of case defendant asked the witness on cross-examination the following question: "Do you mean to tell the jury that a man can come walking from Eagle Ford, and get here by the time you can trot a fast trotting horse under whip, go to the jail and stay four minutes, and get back to the court house and stay twenty-five minutes, then back to the jail, and go from there to the middle of Commerce Street Bridge, and meet the man coming from Eagle Ford on foot?" On objection this question was excluded by the court. This bill, in order to be complete, should have shown the object of introducing said testimony, which it does not do. But concede that the object of appellant in asking the question was apparent, he fails to show what the answer of the witness would have been, or what he expected to prove by him. And, more than this, the question is not an accurate presentation of the hypothetical case as predicated on the statement of the witness; that is, it assumes facts not shown to exist from the examination in chief. The question assumes that the horse driven was a fast trotting horse, and was driven under whip, and that the parties coming on foot from Eagle Ford to Dallas walked all the way, which the statement of the witness on his examination in chief does not show. More than this, it is not shown how far it was from the jail to the bridge. Nor, as an important factor, if the answer to the question was to mean anything in favor of defendant, are we apprised as to the time when said parties (who, when Meeks last saw them before leaving his store, were going in the direction of Ft. Worth, and away from Dallas), may have changed their course, and returned to Dallas. On every account we fail to see how the court could have erred in excluding the question as put.

When Andy Scott, a witness for the state, was on the stand, the bill of exceptions shows that he was asked the following question, to wit: "I will...