Moore v. State

• Decision Date: 04 June 1919
• Docket Number: (No. 5347.)
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

214 S.W. 344

MOORE v. STATE.

(No. 5347.)

Court of Criminal Appeals of Texas.

June 4, 1919.

Rehearing Denied June 27, 1919.

Appeal from District Court, Rockwall County; Joel R. Bond, Judge.

W. D. Moore was convicted of murder, and appeals. Affirmed.

Baskett & De Lee, of Dallas, for appellant.

T. B. Ridgell, of Rockwall, and E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant was convicted of murder, and his punishment fixed at five years' confinement in the penitentiary.

The environment of the juror mentioned in bill of exceptions No. 1 was such as to have given him opportunity to have formed some opinion touching the merits of the case. Nothing, however, is disclosed which would have made him subject to challenge for cause. He was excused on peremptory challenge. No objectionable juror was forced on appellant, and he failed to exhaust his peremptory challenges. There is no error shown. Hudson v. State, 28 Tex. App. 338, 13 S. W. 388; McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683.

The venireman referred to in bill No. 2 having been excused upon peremptory challenge, and the court having offered to restore the challenge to appellant, the bill discloses no error, even though the juror had been subject to challenge for cause. Such opinion as he had was formed from hearsay, and in testing his qualification the court followed the procedure designated in subdivision 13 of article 692, C. C. P. Canon v. State, 59 Tex. Cr. R. 405, 128 S. W. 141.

The appellant, on cross-examination, was asked if he shot in self-defense when he shot deceased while he was crawling on his hands and knees and begging the appellant not to continue to shoot him. The eyewitnesses for the state testified that the shooting took place under these circumstances, and appellant claimed that all the shots fired by him were in self-defense. We think the cross-examination was germane and not subject to objection. Wharton, Crim. Ev. § 429; Weaver v. State, 150 S. W. 789; Crockett v. State, 40 Tex. Cr. R. 178, 49 S. W. 392; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176.

Bill No. 4 relates to the exclusion of testimony which was subsequently admitted, and discloses no error.

The inquiry as to the appearance of appellant, whether excited or irritated, was not objectionable as leading. Canon v. State, 59 Tex. Cr. R. 398, 129 S. W. 139; Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 631; Bennett v. State, 39 Tex. Cr. R. 639, 48 S. W. 61; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111.

The special veniremen having been sworn individually as they were impanelel, the failure to swear them en masse was an irregularity not available when raised for the first time on motion for a new trial. Caldwell v. State, 12 Tex. App. 316. See Jones v. State, 37 Tex. Cr. R. 434, 35 S. W. 975.

In the recent case of Wilson v. State, 210 S. W. 802, the opinion is expressed that the words "before the trial begins" in the statute, touching suspended sentence, meant before both parties had announced ready for trial. If it were not so, however, the appellant having been convicted of murder, and the suspended sentence law not applying to that offense, the holding of the trial court, that his application for the submission of that issue came too late, could have resulted in no harm.

The appellant was a tenant upon the farm of J. S. McDaniel, whose son, Bud McDaniel, was killed. The age of appellant was 57 years, and his son, Goldie Moore, a youth about 17 or 18 years of age, had been severely whipped by the deceased a few days prior to the homicide. This son, according to the testimony, had been an invalid and his mind was feeble. The cause of the assault upon him appears to have been his alleged misconduct towards the sister of the deceased. This appellant claimed, prior to the homicide, was a false charge, maliciously fabricated. The appellant was incensed at the deceased, and went to Dallas and procured a pistol, and some 10 minutes before the homicide, which occurred in the town of Rockwall, he, according to testimony which he denied, referred to the deceased as a "God damned thieving son of a bitch," and said, "I will see him; I will tell him so when I see him." Appellant claimed that he obtained the pistol to leave with his wife on his contemplated absence in eastern Texas, and that he brought it to Rockwall on the occasion of the homicide for the purpose of having a scabbard made for it. He said that he saw the deceased and a companion step off a platform or gallery, and that he was carrying the pistol in a pasteboard box; that immediately upon seeing them he took the pistol out of the box and loaded it with cartridges which he had in his possession. He claimed he was not expecting trouble with the deceased, and did not arm himself for the purpose of trouble, but for the purpose of defending himself, and said after he saw deceased walking before him he did not know what he was going to run up against. He said he had not made up his mind to kill deceased, but had turned the matter of assault on his son over to the court; that he was angry about it, and said:

"I saw him stop, and I went right on; did not halt more than a minute when I slipped my shells in my gun. I hadn't made up my mind to kill him. I loaded the gun to defend myself after I asked him if he beat up my boy. I couldn't help asking him the first time I saw him. I was going to shoot him if he made any `resent.' I wasn't aiming to shoot until he made a pass, and said, `I can get you too.' I wouldn't have shot him if he hadn't resented it. I didn't know whether I had hit him at all. I didn't know what he was after on the ground. When I shot the first time he went down like he was after something. I was shooting him to protect myself."

He described the homicide by saying:

"I walked up and said to deceased, `Bud, did you get satisfaction out of Goldie Moore?' to which deceased replied, `I did'; and came up and says, `I can get it out of you;' and made a lunge at me and I shot him. It looked like he had a knife or something coming toward me, and I shot him, and he went down on the ground and kept running toward me, and I didn't know but what he was fixing to come at me, and I shot him again — twice more."

Upon being asked if he would have fired except in defense of his life, he said:

"Why, of course, I was mad, and that is the cause of my doing it, to protect myself — to save my own life."

The state's testimony, as developed from several witnesses, is illustrated by the following quotation from one of them:

"Bud McDaniel, Mr. G. I. Trotter, and I were standing together, kinder in a row. * * * Mr. Trotter was `cutting up,' and Bud was standing laughing at us. * * * When I first saw Mr. Moore he was coming off the walk. Not a word was said about the defendant. Bud McDaniel was not looking in the direction from whence the defendant came. The defendant walked up in about six or eight feet of us, I suppose, and said, `Bud, I guess you got satisfaction out of the boy;' and when he said that he shot, and Bud threw up his arm like that, and fell and caught on his hands and knees, and went running off, saying, `For God's sake, don't kill me!' he was running on his hands and knees, and the defendant was following him, and when he...