Patterson v. State

• Decision Date: 16 January 1901
• Court: Texas Court of Criminal Appeals
• Parties: PATTERSON v. STATE.

60 S.W. 557

PATTERSON v. STATE.

Court of Criminal Appeals of Texas.

January 16, 1901.

Appeal from district court, Henderson county; A. D. Lipscomb, Judge.

Jim Patterson was convicted of murder in the second degree, and be appeals. Reversed.

Guy Green, W. R. Bishop, and Paul Jones, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 14 years' confinement in the penitentiary. The state's testimony tended to show that some months prior to the homicide appellant was charged with theft, and there were indictments pending against him. He fled the country, and was absent several months, but returned to the neighborhood of the homicide, where he had formerly lived, and where his wife was stopping a few days before the killing, and was evidently then evading an arrest. John Rhodes, deceased, was an officer, being the constable of the precinct. On the day of the homicide, appellant, with several others, was engaged in a game of cards in the woods, not far from the Rhodes residence. Appellant at the time had a shotgun with him, which he had borrowed. During the game the question of Rhodes hunting for defendant came up, and appellant remarked that he (Rhodes) hunted him when he knew he was not in the county. He told one of the parties to go and tell Rhodes to come down there in the woods where he was. Some one asked him what he would do to Rhodes, and he replied to the effect that what he would do to him would be a plenty; that he had been studying about the matter a year, and he was going to do what he had made up his mind to. On that night appellant took supper at his stepfather-in-law's (Billy Greenhaw's). During the super appellant is shown to have made threats against John Greenhaw, a son of Billy Greenhaw; and by one witness it is shown that, in addition to this threat against John Greenhaw, appellant said "he was going down to John Rhodes, and was going to kill the first one who came or went." Immediately after supper he got his gun and left the house, and about 15 minutes thereafter the shooting occurred; and in a short time he came back to the house of Billy Greenhaw, and informed them he had killed Rhodes. The plat here exhibited shows the scene of the killing, and houses and roads in that vicinity.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The testimony shows that the killing occurred about one hundred yards from the Rhodes house; that Brooks' house is situated some three or four hundred yards from Rhodes'; that Billy Greenhaw's is situated about one-half mile from Rhodes'; that appellant could have gone from Billy Greenhaw's to Wurtenburger's by a nearer way than the route he testified he traveled. His testimony in this respect shows he traveled down the road to the west of Brooks' field, then across from the point A to the point B on a road which intersected the road which went by Rhodes' house to Wurtenburger's, where he claimed he had started to. Deceased's dying declarations were introduced in evidence, as also his statement made to his wife immediately after the shooting, as soon as he could walk from the place where he was shot back to his house. In this it is shown that he was on his way from his own house to Brooks', to return a gun he had borrowed from Brooks; that on the way, and when about 100 yards from his house, he saw Patterson at the side of the road, with his gun presented on him; that Patterson took two or three steps towards him and shot him. He stated he did not know whether his gun went off or not; had his wife to bring his gun to him, and unbranched it to see if he had fired it, and found it had been fired; that when he saw Patterson he did not know who it was until he spoke; that the gun was easy on the trigger; and that it fired too quickly. From the tracks at the place of the shooting it was shown that the party who did the shooting stood five or six feet out of the road, near a clump of bushes. Defendant introduced a number of witnesses, tending to show he made no threats against Rhodes; that the only threats he made were against John Greenhaw. He testified himself that he left Billy Greenhaw's to go to Aaron Wurtenburger's, to see if he could sell some corn he owned, preparatory to leaving the neighborhood and taking his wife away, for which purpose he had come back to that vicinity; that he did not go by Wilkerson's and Brooks', but took a nearer route, intersecting that road about 150 yards from Rhodes' house; that he saw Rhodes coming down the road with a shotgun under his arm; the moon was shining brightly, and he recognized Rhodes; hoping to avoid him and not be arrested, if he had any papers for him, he stepped out of the road into the woods, and had gone but three or four steps when Rhodes saw him and holloed, "Hello!" that he answered back, and Rhodes immediately threw his gun up and shot at him; that he immediately raised his gun and shot him; that he dropped down on his knee to look to see if Rhodes was going to shoot again, and he saw him turn back towards his house, and he unbreeched his gun and put in another shell, turned back, and went to Billy Greenhaw's. This is a sufficient outline of the case to discuss the questions presented.

The state's theory was that appellant lay in wait for Rhodes and shot him. Appellant's theory was that he acted in self-defense; that he did not attempt to shoot Rhodes until Rhodes first fired at him. The court submitted murder in the first degree and murder in the second degree and self-defense.

As explained by the court, there was no error in permitting the introduction of Mrs. Rhodes and another witness after defendant's rebuttal evidence had been introduced. These witnesses were not present when the state closed its testimony in chief. Besides, it is always competent for the court to authorize the admission of testimony at any time,—not only during the submission of testimony, but at any time before the argument is closed.

Nor was there any error in admitting in evidence the action of defendant in refusing to surrender the gun after the homicide. This was the gun with which appellant committed the homicide, and he refused to surrender it, as he stated, "until he got through with it." If appellant's flight would be good evidence against him (and he was then fleeing), any act of his in connection with his flight, and characterizing it, it occurs to us, would be admissible.

By bills Nos. 4, 9, 10, and 11, appellant questions the action of the court in permitting the introduction of testimony tending to show that at the time of the homicide, and for some time before that, he was a fugitive from justice on account of certain charges of theft which had been preferred against him. He claims that this character of testimony was with reference to other crimes in no wise connected with the offense for which he was on trial, and so was not admissible. We cannot agree with this view. It seems that the charges against appellant, according to the theory of the state, had a good deal to do with the homicide. It is shown in that connection that John Rhodes was an officer, and that appellant believed he had process for him; that he had heard Rhodes was looking for him; and that he threatened Rhodes on that account. According to the state's theory, these matters furnished the background suggesting the motive for the homicide, and, in our opinion, this character of testimony was admissible.

Nor, in our opinion, did the court err in admitting testimony tending to impeach and discredit Mary Greenhaw, the mother-in-law of defendant. She testified that no threats were made by appellant against Rhodes, and that appellant did not say he was going down there and kill the first person that came or went. In this state of case, it was permissible to show by the witnesses Billy Greenhaw and Alice Greenhaw that they had talked over the matter with Mrs. Greenhaw, and she agreed that their statements were correct.

The testimony of Will Driver as to what Will Ross may have told him when he came to his house on that night we do not think was admissible. It was hearsay evidence, and does not come under any of the exceptions we are aware of in regard to the admissibility of hearsay testimony.

The seventh bill of exceptions does not show any facts to which the witness would have testified.

In the absence of testimony tending to show that appellant knew that Charley Wood bought certain buckshot at Burns' store, that testimony was not admissible. We find nothing in the record to indicate that appellant knew of this purchase, or that he used the buckshot. On the contrary, the testimony indicates that he could not have known of this purchase. We would observe, however, that the case would not be reversed on account of the admission of this testimony, as we fail to see what material bearing it would have. That appellant had a shotgun, and was carrying it about in the neighborhood to prevent his arrest and to shoot any person who attempted it, is evident, and that the gun was loaded with buckshot is also manifest, and it does not matter where he got the shot.

Appellant's fourteenth and fifteenth bills question the action of the court in permitting certain denunciatory remarks made by the private prosecutor in closing the argument, and also complain of the court's...