Parker v. State, 20489.
| Decision Date | 18 October 1939 |
| Docket Number | No. 20489.,20489. |
| Citation | 136 S.W.2d 229 |
| Parties | PARKER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, San Augustine County; F. P. Adams, Judge.
Lester Parker was convicted of murder, and he appeals.
Affirmed.
Adams & McAlister, of Nacogdoches, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is murder; the punishment assessed is confinement in the state penitentiary for a term of two years.
Appellant's principal contention seems to be that the evidence is wholly insufficient to warrant and sustain his conviction. We are unable to reach such a conclusion from a careful study of the record.
The state's testimony, briefly stated, shows that on the night of January 23, 1932, J. A. Honeycutt, Mrs. Rush Payne, Bonnie Payne and the deceased, were on their way to San Augustine in a car. They stopped at a drug store and from there drove out and stopped on the side of a road. Shortly thereafter, appellant and his companions came along and stopped. The deceased went over to appellant's car and asked for some whisky. Appellant told him he had none, and appellant's companion, Hanzel, then gave the deceased a pint of whisky. When the deceased returned to his car he remarked: "I got a full pint instead of a drink." Following this incident, appellant and his companions proceeded to Mark Mills. While on their way, appellant remarked to his companions that he intended to kill the deceased because the deceased was going to the sheriff and he, appellant, was going to be arrested for having whisky in his car. He then threw the balance of the whisky remaining in the car out and broke it. At Mark Mills they met the appellant's mother, Caro Parker, and his brother Isaac, in a car. Appellant and his companion, Mary Hanzel, left their car and got into the car occupied by his mother and brother. While sitting in the rear seat, appellant had a gun in his hand and remarked: "If I meet Mr. Amey, he is my man." After taking Mary Hanzel home, they finally drove down a side road, where the deceased and his companions had parked their car and gotten out. It appears that the deceased had raised the cover of the back of his car when he observed a car coming down the hill. When the oncoming car had reached a point near the deceased's car, the deceased walked rapidly out into the road, at which time appellant fired several shots. After the car had passed, the deceased walked up to his companion, Mr. Honeycutt, and remarked: "They got me." He fell on the ground and soon died. Deceased was shot in the back below the right shoulder blade and the bullet came out below the left nipple and lodged between the body and the underwear.
Appellant offered testimony which showed that the deceased had threatened to whip him; that he was following him around and when he and his companions were driving down the road and had reached a point near where the deceased and his companions had parked their car, the deceased ran out into the road and fired several shots, whereupon appellant returned the fire in self-defense, since he was afraid the deceased would either kill him, his mother, or his brother.
It will be noted that the testimony recited raised an issue of fact which was submitted to the jury for their consideration under an appropriate instruction from the court. In order for this court to hold, as a matter of law, that appellant acted in self-defense when he killed the deceased, the evidence on that question would necessarily need to be uncontradicted so that no issue would be raised. Here we have appellant making threats to kill the deceased just an hour or two before he did kill him. Deceased was shot in the back and then appellant evaded arrest by leaving the country. Even if the deceased had run out into the road, he did not, according to the state's witnesses, have a pistol in his hand at the time. We deem the evidence sufficient to sustain the jury's conclusion of appellant's guilt.
Bills of exceptions numbers one through four complain of the introduction of testimony into the record while Lewis Hanzel, a witness for the state, was testifying. The state, it seems, elicited from Hanzel the fact that he had a date with the deceased on the night in question and was supposed to meet him at his (Hanzel's) house. Appellant objected to all this testimony on the grounds that it was hearsay, uncommunicated to the defendant, prejudicial and inflammatory. We note from the record that the witness further testified that he did not meet the deceased, but that the next time he did see him was after he had been killed. We are at a loss to understand how or in what manner this testimony was hurtful to the appellant or prejudicially affected his rights.
Bill number five complains because the state, on direct examination of its witness, Lewis Hanzel, asked him to state whether the deceased, on the night in question, was coming to his house after some whisky. Appellant's objections thereto were about the same as presented by bills one through four. However, the court sustained the objection and instructed the jury not to consider the same for any purpose. The court's prompt action in this respect cured any error that might have resulted therefrom.
By bill of exception number six, appellant complains because the District Attorney asked the witness, Emil Hanzel, one of the State's witnesses, the following question: "Where were you and the defendant going on the evening of the night Laurie Amey was killed?" The witness replied: "We were going to a dance to sell some whisky?" Appellant objected to the answer of the witness and the question propounded because it constituted evidence of an extraneous offense and was an attempt to accuse the defendant of another crime other than the one with which he was charged; that the defendant's reputation had not been put in issue at the time. The objection was overruled and appellant excepted.
We find in the record that the appellant, by his own witness, Bonnie Lee Henderson, proved that he did have whisky in his car at the time, and from many sources comes evidence that he was transporting it. Appellant, himself, testified as follows: ...
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...in self-defense, the evidence must be uncontradicted and no issue thereon presented for the jury's determination. Parker v. State, 138 Tex.Cr.R. 478, 136 S.W.2d 229; Patton v. State, 129 Tex.Cr.R. 269, 86 S.W.2d 774." Although we agree with appellant's implicit contention that there was a s......
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