Rhodes v. State

• Decision Date: 25 May 1898
• Citation: 45 S.W. 1009
• Parties: RHODES v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 1009

RHODES v. STATE.

Court of Criminal Appeals of Texas.

May 25, 1898.

Appeal from district court, Gonzales county; M. Kennon, Judge.

Ed Rhodes was convicted of murder, and he appeals. Reversed.

Burgess & Hopkins, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal.

The indictment charged Claud Rhodes, Yearby Rhodes, and Ed Rhodes with the murder of R. R. Coleman, by shooting him with a pistol. The circumstances attending the killing show that a state of ill feeling existed between the Rhodeses on one side and the deceased on the other, and various expressions of ill will and bitter feeling were proven to have been made by members of the Rhodes family, including Bill Rhodes, Yearby Rhodes, and Ed Rhodes, brothers, and Claud Rhodes, the sons of Bill Rhodes, antedating the homicide for several months, towards deceased. It is also shown on the part of the defendant that the deceased, Coleman, entertained ill feelings towards the Rhodeses. The homicide occurred on the evening of the 3d of November, 1896, the same being the day of the general election, in one of the most public places at Waelder. The plat of the ground shows that the killing occurred north of, and in the rear of, Robertson's store. The stores of Robertson, Mrs. McCraw, Claud Rhodes, and Tom Pool joined. Each of said stores fronted south, towards the Galveston, Harrisburg & San Antonio Railway. The store of Claud Rhodes extended back north 80 feet, and had a door and window in the north end, and a window in the east side, near the rear. Mrs. McCraw's store only ran back 50 feet, with a door and window in the rear. The store of O. B. Robertson extended back 90 feet, with a window in the west side and a door in the north end. East of Robertson's store was a vacant lot, 30 feet wide, and east of that was the store of R. L. Miller, which was on the corner which extended back from south to north, 80 feet. There was a vacant space, or open plaza, in the rear of all these stores, where it appears on the day of the homicide a number of people were congregated. The killing occurred in the rear of Mrs. McCraw's store, and at or near the northwest corner of Robertson's store. It appears from the testimony that deceased, R. R. Coleman, was acting in some capacity as a peace officer or policeman, though the record discloses no authority on his part to act as such. The testimony shows that he made one arrest that day before dinner, and was seen carrying a man to the calaboose; and, when his authority was questioned by the Rhodeses, he stated to them that Sheriff Jones requested him to preserve the peace, and that he would arrest appellant if he cut up. It also appears that one Ham was with the deceased, Coleman, and in the difficulty acted with him. There is no testimony, however, intimating that he was an officer. The testimony showed that a crowd of people were congregated in the open plaza on the north side of said building. Bill Rhodes and several parties, shortly before the difficulty, were standing in the rear of Mrs. McCraw's store, near the cistern, engaged in conversation. While they were talking, Ed Rhodes, the defendant, came out of the north door of the McCraw store, and started on north, pulled his hat off, waved it around his head, and said "Hurrah for Bryan and free silver, by God!" About this time Coleman came around the north corner of the Robertson building, and went up to defendant, and took hold of him, and said, "If you don't be quiet, I will put you in the calaboose." Bill Rhodes walked up, and said, "Coleman, you are no officer, and can't arrest anybody." Coleman replied, "Sheriff Jones requested me to preserve the peace, and I will arrest him if he cuts up." Some further altercation of words ensued, and Bill Rhodes called Coleman "a half-breed Mexican son of a bitch." Coleman immediately drew his pistol, and knocked Rhodes down, inflicting a severe wound on his head, from which he bled profusely. He presently rose up, and Ham and Coleman presented their pistols on him. It seems that, besides Bill Rhodes, Ed Rhodes and Yearby Rhodes were both present or near by. At this juncture, Mrs. Pool, the sister of Bill Rhodes, came out from the north door of Claud Rhodes' store, and she and Ed Rhodes took hold of Bill Rhodes, and carried him into Claud Rhodes' store, entering at the north door. D. E. Johnson took Coleman by the arm, evidently to carry him off, and got in the rear of Robertson's store. As to what occurred in the store of Claud Rhodes, after Bill Rhodes was carried in there, the testimony is conflicting. Some of the state's witnesses show that Claud Rhodes furnished Bill Rhodes with a pistol and got one himself. The testimony for the defendant shows that Bill Rhodes, despite the efforts of Claud Rhodes, Ed Rhodes, and Mrs. Bill Pool, succeeded in getting the pistol. The testimony of the defense, also, tends to show that these parties endeavored to restrain Bill Rhodes and keep him in the house, but that he overcame their opposition, and as soon as he got a pistol went out at the north door. As to what happened after Bill Rhodes got out at the north door, and before he went in the house, there is no conflict in the testimony. The evidence shows that he at once advanced towards Coleman, who was then at the rear of Robertson's store, and made some remark, and began to draw his pistol, and Coleman also drew his, and they fired at each other about the same time, and continued firing at each other until they had each fired four or five times, and had apparently emptied their pistols. They continued to snap them at each other, and then went to striking at each other. About this time Ed Rhodes, defendant, came around the Robertson building from the front and approached from the north end. The firing at that time had ceased, and Coleman was standing at or near the north door of the Robertson building against the wall, and defendant struck him over the head with a billiard cue and knocked him down. Bill Rhodes in the meantime had fallen. Yearby Rhodes came up about this time, approaching from the west, and was trying to get at Coleman with a pocket knife in his hand, but was prevented by the bystanders. Defendant retired, back the way he came; and there is some testimony that Claud Rhodes also retired the same way, with a pistol in his hand. One or two witnesses testify to seeing Claud Rhodes during the shooting at the east window of his store with a pistol, and one witness testified to seeing him fire the pistol once. But this is controverted by other testimony. It was proven by the physician that the lick struck with the billiard cue was not a fatal wound, but that deceased, Coleman, died from the effect of two gunshot wounds, one of which entered the right side in front near the nipple and ranged through the body in front, breaking the breastbone. The other entered above and to the right of the left nipple, and lodged against the skin near the backbone. He lived until the next day, and died from the effect of these wounds. Bill Rhodes lived about a week, and died from the effect of the wounds received by him.

The theory upon which the state conducted the prosecution was that the killing of Coleman was done by Bill Rhodes, and that Ed Rhodes, defendant, was present and participated in the same, and it was a killing of either murder in the first or second degree, because it was done in pursuance of a conspiracy entered into between the Rhodes boys to bring on a difficulty and kill Coleman; that, if it was not murder, it was at least manslaughter, because the killing by Bill Rhodes was not done in self-defense, but was committed after he had received a severe wound, and had retired from the conflict, armed himself, returned, and renewed the difficulty; that, under such circumstances, the homicide would be at least manslaughter on the part of Bill Rhodes; and that appellant, knowing his intent, participated therein, and so he was guilty of manslaughter. The case for the state was prosecuted almost entirely on the theory of a conspiracy between the Rhodes brothers and Claud Rhodes to bring on a difficulty with Coleman and kill him.

All the evidence that we have been able to cull from this record, suggesting a conspiracy, aside from the circumstances attending the homicide itself, are as follows: Some month or so before the homicide it seems that deceased, Coleman, had arrested Claud Rhodes for gambling or permitting gambling in his house. The parties had a wordy altercation about this, in which Coleman characterized the Rhodeses as a "low-down rascally set," and drew his pistol, and made Claud Rhodes retreat into his store. Bill Rhodes, who lived at...