Mowery v. State, 19006.
| Decision Date | 05 May 1937 |
| Docket Number | No. 19006.,19006. |
| Citation | 105 S.W.2d 239 |
| Parties | MOWERY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court No. 2, Dallas County; Noland G. Williams, Judge.
Luther Mowery was convicted of murder without malice, and he appeals.
Reversed and remanded.
Currie McCutcheon, of Dallas, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant was convicted of the offense of murder without malice, and his punishment was assessed at confinement in the state penitentiary for a term of two years.
Appellant's first and main contention is that the testimony is insufficient to justify and sustain his conviction. For a better understanding of the law of this case, we deem it necessary to set forth the salient facts proven upon the trial.
On the night of March 21, 1936, the appellant, Ted Shupback, Floyd Vincent, Ralph Galina, and E. F. Brown went to George Kimmell's place of business between the hours of 11 and 12 p. m. While there they purchased some beer and cigarettes for which they failed to pay. Kimmell demanded payment, which precipitated an argument. During the argument one of the men while tapping on the showcase with a beer bottle broke the showcase by tapping it too hard. They then ran out and Kimmell started to follow them, but his clerk, Mr. Francis, admonished him not to follow them out without a gun as they might kill him. He then went behind the counter, picked up a pistol, went out, and chased appellant around an automobile two or three times, when appellant entered the automobile. While appellant was in the automobile and Kimmell was standing at the side of the automobile talking to him, Ted Shupback struck Kimmell on the right side of the head and knocked him down. Shupback, Vincent, and appellant then jumped on him and beat him on the face and head as he lay unconscious on the ground. Three other parties who were present testified in the case, two of whom said appellant struck Kimmell with his fist, while one testified that he struck him with a beer bottle. Mr. Francis, who was an employee of Kimmell, went out to intercede in his behalf. They left Kimmell on the ground and chased Francis into the beer tavern. Kimmell, the injured party, was taken to the hospital, where he died soon after his arrival. Dr. Bush testified that he examined deceased immediately after he had been brought to the hospital; that he found a lacerated wound one and one-half inches long on the right side of his head; that there were other bruises on his face and head, but that these were superficial; that the blow on the right side of the head fractured the skull and produced death; that it alone was the cause of Kimmell's death.
Bob McKee testified on behalf of the state that he was at the deceased's place of business while the appellant and his companions were there; that he heard appellant tell Kimmell that he had beaten up a boy that night and showed him some scratched places on his arm; that Kimmell told appellant, "You had better get that cloth off and let me clean that off, you might get blood poisoning"; that appellant said it wasn't necessary; that Kimmell then said to appellant, "You had better go home before you get into trouble," to which appellant replied, "Well, if you don't like it, maybe we are going to kick your joint in and kick you out of it and take charge"; that deceased replied, "No use acting that way."
Appellant did not testify or offer any testimony. Hence proof of the appellant's guilt depends upon the testimony offered by the...
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