Ozark v. State

• Decision Date: 06 March 1907
• Citation: 100 S.W. 927
• Parties: OZARK v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 927

OZARK v. STATE.

Court of Criminal Appeals of Texas.

March 6, 1907.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

John Ozark was convicted of murder in the first degree, and he appeals. Reversed and remanded.

O. L. Stribling, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at a life sentence in the penitentiary.

The facts in brief in this case are as follows: Deceased, Antone Janda, had been making a crop on a farm near the little town of Axtell, McLennan county, Tex., and, while living on said farm, he accumulated something near $125, which money was in two $50 bills, and the rest in small bills. This money was inclosed in an antique watch case that deceased brought over from Bohemia, and, after placing the money in said case, he placed same in his watch pocket, in his pants. Deceased left the place of his residence as stated and went to the little town of Axtell. There he met appellant, John Ozark, in the Dowdy saloon. Deceased seemed to have drank to quite an excess while there; spent some money after changing a $5 bill with the saloon man, and about 11 o'clock at night he started home with appellant and his two stepsons, Fred and Joe Slovacek. After the four parties had gone something like a half a mile, the deceased being quite intoxicated, and Fred Slovacek trying to assist him along, the two boys, Fred and Joe, left the deceased, and went a near way to their home, and when they left the deceased, John Ozark was some little distance ahead of the boys in the road going toward home. Fred Slovacek, although he testified in the examining trial, was not present upon this trial. Joe Slovacek was placed upon the stand and detailed the last-stated facts, and further said that at the time he did not know when his father came home; that he was asleep. Appellant, about 3 o'clock in the morning, the weather being quite cool, went to the house of Milton De Fate, a negro who lived some 150 yards from appellant's home. Appellant, after calling the negro out, made this statement: "`Come out here. I want to talk with you a minute.' Said he went down the road after the old man, and called the old man, and shook him, and the old man didn't say anything. Appellant then stated: `Me got scared and ran. Me wants you to go with me. Me afraid to come down by myself, but afraid somebody would say I had killed the old man.' I replied: `Why don't you get your boys?' He said: `They will not go with me.' I lit my lantern, and looked at the clock, and put on my clothes, and we went on; went about half a mile, I guess. I was on the left-hand side, walking, and got even with the old man, and he got off the horse, and went to the old man with his light. I didn't go to the old man. The weeds were high over his head. I could see the red through the weeds; looked like blood. He said: `The old man is dead. Let's see if he had any money on him.' I said: `No; let's go and get an officer, and get them to search him.' And he said: `All right.' And I and him went on to Axtell walking; appellant leading the horse." The evidence further shows that the negro and appellant went after the officers. They were subsequently brought down to the place where the deceased lay; that is, the justice of the peace and deputy sheriff. When the officers returned with appellant and the negro, Milton De Fate, appellant, in the course of conversation, said to the justice of the peace: "You do not think I killed him, do you? If I had killed him, I would have taken him in the woods and hung him." Deceased was examined by the officers. No money was found on him, but an imprint in his watch pocket was seen upon his pants showing where the watch case had been taken from the case in which he carried his money. There are a few other circumstances in the record, but we do not deem it necessary to state all of them. But one other fact we will here state. The state placed Joe Slovacek upon the stand, and after stating the above facts as having been stated by him, he stated that his father's coat was lying in the room on some cotton seed, and that on Monday evening, the killing having occurred Tuesday night, he (witness) went hunting and killed a couple of cotton-tail rabbits and laid them on the gallery, and the cats took them and dragged the rabbits on his father's overcoat, blooding same, and that he, through fear of a whipping for this negligence on his part, took the overcoat about a mile away from the house and hid it. The state, by various witnesses, however, contradicts this statement in part, and proves that the boy Joe told the deputy sheriff, the sheriff, and justice of the peace, and perhaps others, that his father had given him the coat on the night or morning after the killing and made him go and hide the coat in a place where it was found. This the witness Joe Slovacek persistently denied as being true, but he says he made said statements through fear.

Bill of exception No. 2 shows the county attorney offered in evidence the overcoat which had been identified as the overcoat of the defendant by the witness Joe Slovacek, and as being the overcoat on which blood stains were made by a cat eating rabbits on same on Monday preceding the homicide on the following Tuesday, and being the overcoat which the witness Joe Slovacek testified that he hid in the woods on said Monday to conceal the same from the defendant, in order to prevent defendant from chastising him for getting blood on said overcoat, to the introduction of which appellant objected, because the same was improper evidence before the jury, and its introduction could not tend to throw any light on the issue before the jury, and it had not been proved that the defendant was wearing the overcoat on the night of the homicide, and at the time of the homicide, nor that the stain on same was human blood, and the only effect the introduction of said overcoat before the jury could have would be to prejudice the minds...