Peter v. State

• Decision Date: 22 June 1887
• Parties: PETER v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

5 S.W. 228

PETER v. STATE.¹

Court of Appeals of Texas.

June 22, 1887.

Appeal from district court, Montague county; J. W. PATTERSON, Esq., Special Judge.

Under an indictment charging him with the murder of Homer Crook, the appellant was convicted of manslaughter, and his penalty was assessed at a term of two years in the penitentiary. A statement of the proof on this trial, sufficient to illustrate the rulings of this court, is contained in the opinion.

E. E. Smith and W. S. Jamieson, for appellant. W. L. Davidson, Asst. Atty. Gen., for the State.

HURT, J.

Appellant was convicted of the killing of Homer Crook; the jury finding the grade of the homicide to be manslaughter and assessing the punishment at two years' confinement in the state penitentiary. Briefly stated, the circumstances attending the homicide were that appellant, who was a constable of Denton county, was in pursuit of one Leck Crook, a brother of deceased, for whom he had a warrant issued by a justice of the peace of Wise county. About 10 or 11 o'clock of the night of the homicide, appellant and others went to the house of Leck Crook's father, in Montague county, to make a search for the fugitive. The search does not appear to have been in any manner impeded by any member of the family; in fact, the father gave voluntary information leading to the recovery of a horse which was part of the object of the search. Failing to find Leck Crook, the party went into camp about half a mile distant from the searched premises.

Appellant and one Fondren went back, and stationed themselves sufficiently near to the house to keep up a watch. Shortly thereafter, according to the testimony of N. B. and William Crook, the deceased, under instructions from his father, went out to see if the horses were securely tied for the night. Following soon thereafter, the report of a gun was heard, and upon going out they found Homer Crook lying dead upon the ground, near to where the horses were tied. N. B. Crook testified that the shot was fired just as he was calling his son, the deceased.

D. C. Fondren, the only eye-witness to the homicide, testified that, when they saw deceased near the pen where the horses were tied, appellant said: "Yonder he is now;" that deceased "stood there a short time, and while there he was facing where we were squatted down, but in full view of where he stood; then he started in the direction of where we were; and when he advanced towards us about 50 yards, defendant told him to halt, but he did not stop, and came on towards us; and after he had advanced a few steps further we told him again to halt, or hold up. As we did so he stopped and drew his hands up to about his waist; then defendant fired, and deceased fell. I did not hear anybody call Homer just before the shooting; and did not hear anybody about the house call any one before the shooting." He further testified that he and appellant went off rapidly in the direction of the tank, without stopping to look at the body.

It was in evidence that it was a bright moonlight night, and that appellant was well acquainted with both deceased and Leck Crook; that he was on friendly visiting terms with the Crook family, they having cultivated land belonging to his father in Denton county, in 1883. Also, that the deceased and Leck Crook were somewhat alike in general appearance, though not of the same height and weight.

A witness who met appellant and Fondren returning to the tank just after the shooting stated that, in answer to a question from him, appellant said he had shot some one he supposed was Leck Crook, but was then afraid he was mistaken as to the man, and that appellant then proceeded to detail the circumstances of the shooting substantially as given by Fondren.

The first assignment of error complains of the action of the court below in rejecting the testimony of Granville Kindred, by whom it was proposed to show that, a few days before the killing of Homer Crook, Leck Crook was confined in the jail of Denton county, of which witness was the turnkey; that Leck assaulted and overpowered witness, taking away from him the keys and releasing himself and other prisoners, and that these acts of violence were known to appellant. The court sustained an objection to this testimony, and in this ruling we find no error. The theory upon which this assignment bases itself also pervades several exceptions to the charges given and refused, to the extent that they may be considered together.

The defenses interposed are mistaken identity and self-defense. For the purposes of this opinion the former will be considered as established, and the case...