Rhodes v. State

• Decision Date: 27 April 1927
• Docket Number: (No. 10789.)
• Parties: RHODES v. STATE.
• Court: Texas Court of Criminal Appeals

294 S.W. 212

RHODES v. STATE.

(No. 10789.)

Court of Criminal Appeals of Texas.

April 27, 1927.

Commissioners' Decision.

Appeal from District Court, Stonewall County; Bruce W. Bryant, Judge.

A. F. Rhodes was convicted of murder, and he appeals. Reversed and remanded.

Stinson, Coombes & Brooks, of Abilene, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

BETHEA, J.

The appellant was convicted of the offense of murder, and his punishment assessed at life imprisonment in the penitentiary.

The killing occurred in the town of Aspermont on Sunday afternoon. The appellant was city marshal at the time of the killing; having been elected about three weeks prior thereto. The killing grew out of appellant's attempt to arrest deceased for a minor infraction of the law. At the time of the killing deceased had a lariat on one arm and a pocket knife in his hand.

The contention of the state was that deceased dropped his knife in response to appellant's order, and that appellant cursed deceased and told him he was going to kill him, and fired three shots, which resulted in the death of deceased.

Appellant defended on the ground of self-defense; his theory being that deceased had his knife in his hand at the time appellant fired the first and second shot, and that, before he shot deceased, deceased rushed toward appellant, and appellant, believing he was in danger of serious bodily injury or death, shot deceased.

The court submitted the law of self-defense and manslaughter, in addition to that of murder.

There are no objections to the court's charge. We find in the record two bills of exception raising questions for our review.

The first bill complains of the action of the court in overruling appellant's application for change of venue.

Appellant, in support of his motion, introduced fifteen witnesses, representative citizens of the county, from different sections of the county, and from all walks of life — doctors farmers, bankers, an ex-sheriff, a former jury commissioner, and a newspaperman, most of whom had resided in the county for a number of years. The state introduced five witnesses for the purpose of controverting appellant's application, one of whom was the present sheriff of the county. All of the witnesses, both for the appellant and for the state, stated they had heard the case discussed by numbers of people, citizens of the county, and that the prevailing opinion in the county was that appellant was guilty, and ought to be punished. Some of the witnesses testified they believed appellant could get a fair and impartial trial in Stonewall county.

The sheriff of the county, W. B. Bingham, testified in behalf of the state that he believed the appellant could get a fair trial. On cross-examination, he testified as follows:

"I feel this way; he ought to go to the courthouse and be tried, and I feel that he is guilty and ought to be punished."

W. A. Springer, witness for the state, testified on direct examination:

"I live in the town of Aspermont; I have lived here about 22 years,"

— and on cross-examination testified as follows:

"I am pretty well acquainted all over the county. I am in the banking business. During the time I lived here I had occasion to meet a great many jurors in this county. I have heard expressions of opinion as to the guilt of Mr. Rhodes. All I have heard was that he was guilty. * * * If jurors are selected in the usual manner, in my opinion, it would be difficult for the defendant to get a fair and impartial trial in this county. I heard it discussed by people from most parts of the county. * * * There seemed to be a great deal of notoriety about the killing."

It appears in the record that immediately after the killing the appellant was moved from Stonewall county and placed in jail in another county for his personal protection; that a crowd, or mob, followed the sheriff a part of the way; and that Stonewall county only has about 800 qualified jurors.

The court's qualification of the bill discloses that a venire of eighty men was drawn, three of whom were reported by the sheriff as "not found." Six were excused by counsel for the state and the appellant. Seventy-one answered to their...