Petitte v. State

• Decision Date: 12 June 1929
• Docket Number: (No. 12648.)
• Citation: 21 S.W.2d 522
• Parties: PETITTE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 522

21 S.W.2d 522

PETITTE v. STATE.

(No. 12648.)

Court of Criminal Appeals of Texas.

June 12, 1929.

State's Rehearing Denied November 13, 1929.

Commissioners' Decision.

Appeal from District Court, Anderson County; W. C. Campbell, Special Judge.

Reagan Petitte was convicted of murder, and he appeals. Reversed and remanded.

J. D. Pickett, of Palestine, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 15 years.

It appears that the trial took place before a special judge. The statute requires that before a special judge shall enter upon his duties he shall take the oath of office required by the Constitution, and his selection and the fact that the oath of office has been administered to him shall be entered upon the minutes of the court as part of the record in the cause. Articles 555 and 556, C. C. P. No oath of office is embraced in the transcript. That it is essential that the oath of office be taken and that the record reveal it is the announcement of the decisions of this court. Sewell v. State (Tex. Cr. App.) 291 S. W. 549; McLemore v. State, 107 Tex. Cr. R. 408, 296 S. W. 552; Blanks v. State, 105 Tex. Cr. R. 341, 288 S. W. 452; Harris v. State, 105 Tex. Cr. R. 342, 288 S. W. 450; Norman v. State, 102 Tex. Cr. R. 5, 277 S. W. 126, 127; Salazar v. State, 102 Tex. Cr. R. 189, 276 S. W. 1105; Dawes v. State, 87 Tex. Cr. R. 452, 222 S. W. 560; Reed v. State, 55 Tex Cr. R. 137, 114 S. W. 834; Weatherford v. State (Tex. Cr. App.) 28 S. W. 814; Smith v. State, 24 Tex. App. 290, 6 S. W. 40.

The judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

This case was reversed upon the sole ground that the record failed to disclose the election and proper qualification of the special judge who tried the case. Attached to the state's motion for rehearing is a duly certified copy of the minutes of the trial court showing that said special judge was duly elected and qualified; hence the judgment of reversal upon the above ground should not stand.

The facts show that appellant shot deceased and one Cornwell on the same occasion, from the effects of which shooting deceased died at once, but Cornwell recovered and testified as a witness for the state. He said in substance that he and deceased were at work, and that appellant walked up to them, and both of them spoke to him, whereupon appellant made an inquiry of deceased as to how many of their hogs he had killed. Deceased replied to the inquiry, and then directed appellant to go on away and leave them alone. Mr. Cornwell testified that at this juncture appellant raised his gun and fired at deceased, who was doing nothing to him and had no weapon, and had made no threat or threatening gesture. He further testified that, after shooting deceased, appellant started to run away, but turned and fired at witness a distance of some 35 yards. Witness was wounded by the shot. The facts show that appellant used a single-barrel shot gun, and that the shells used by him in shooting were loaded with No. 5 shot. It appears from the record that as appellant was going up the road towards the home of deceased he passed some persons, and the complaint in bills of exception Nos. 1 and 2 is of the rejection of testimony of two of these people to the effect that appellant told them he was out hunting birds. We see no harm resulting from the refusal of this testimony. Appellant testified that he was out hunting birds, but admitted that he used No. 5 shot in shooting deceased and Cornwell, and further admitted that he had never shot birds before with No. 5 shot.

There is complaint in bill of exceptions No. 3 of the rejection of the testimony of a Mr. Dillard who lived about a half mile from the scene of the shooting as to what appellant told him when he came by Dillard's place after the killing. The exact length of time is not shown, but we observe from the appellant's testimony that he says he ran and trotted all the way from the place where the shooting took place to where he saw and talked to witness Dillard. The bill of exceptions sets out that Mr. Dillard saw the defendant walking down the road rapidly and acting strangely, and that without stopping or changing his gait defendant made certain statements to the witness. As part of said statement, the defendant sought to have Mr. Dillard state as follows: "That the defendant said that him and Bill Abbey and the Cornwell boy had a little shooting scrape up there, and that Bill Abbey started to shoot him, and that defendant shot at Bill Abbey and he fell, and that the Cornwell boy started to shoot...