Rice v. State

• Decision Date: 06 March 1907
• Citation: 103 S.W. 1156
• Parties: RICE v. STATE.
• Court: Texas Court of Criminal Appeals

103 S.W. 1156

RICE v. STATE.

Court of Criminal Appeals of Texas.

March 6, 1907.

On Rehearing, June 26, 1907.

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Appeal from District Court, McLennan County; Marshall Surratt, Judge.

Mark Rice was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Taylor & Gallagher, for appellant. Baker & Thomas, F. J. McCord, Asst. Atty. Gen., O. H. Cross, and L. T. Williams, for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at death.

The testimony in this case for the state and defense is, in substance, as follows: Louey Thompson, witness for the state, testified as follows: "I am a saloon man. Remember the killing. Was working for Mr. Luther Phelan at the time he was killed. I saw Mark Rice in the saloon that night the first time about 10 o'clock. He came with three gentlemen, one named Dunn, and the other named Clarke, and I believe the other was a carpenter—I forget his name. He remained about 10 minutes. They were all taking refreshments. Defendant didn't say anything the first time he came. He came back after that by himself. The first time he came I heard nothing said between him and Luther Phelan. Nothing was said about shaking dice. I was on duty that evening at the saloon. The first time he came there must have been 10 or 12 people in the saloon. He left the saloon, after the first visit, about half past ten. The first time they were in there they had a conversation, but I don't know what it was about. I was waiting on customers. When Mark came in the first time, Luther was in front of the bar, and not behind it. I was behind the bar, and Rice was in front of the bar. It might have been a quarter of an hour from the time Rice left the saloon the first time until he came back the second time. When he came in the second time I was behind the counter; Luther Phelan was in front of the counter. Moore and Mr. Luther were in conversation. Both of them stood in front of the counter. Mr. Moore was standing right close to the partition in the corner of the bar and the partition. Luther Phelan was standing right close to him. Rice came in the front door this time. He stepped up to the counter and put two quarters down, and asked Phelan to join him and have something, and Phelan refused him, and said he didn't feel like it at the present time to join him; and Rice says, `Well, is there nobody else going to have something with me?' Mr. Moore was standing right close to him, and Mr. Moore says, `Well. I go you.' And Rice says, `Well, I have finally got somebody that is going to take a drink with me;' and at the same time Luther Phelan looked at the clock, and says, `It's about time for me to go the barber shop; it's about a quarter to 11;' and at that time he kind of made a step towards the door and Mr. Rice took about two or three steps backward, and got out his gun and shot him. Q. Do you remember hearing Rice say to Phelan he had mistreated him? A. He said something in that regards, not for an insultation, or something of that kind. He made a remark of some kind. Q. Do you remember what Phelen said in reply—whether he said anything? A. He said he thought he had not done anything wrong to him, and he intended to go to the barber shop, and intended to go home. Luther Phelan had nothing in his hands at the time he was shot. He did not put his hand about his pockets or anywhere. He did not curse Mark Rice. He did not talk or look like he was mad, because he was in the best humor. When Mark Rice shot him, Phelan got up to go to the door. He was right close. There is a kind of double door on hinges, and Phelan swung the door and went out of it. It was done that quick, and I did not see him any more after that. Rice stood there for a while, and went up to the swinging doors and opened one of the doors, and looked around to see if he could see anybody, but there was nobody in the front. All were gone out, and he came back to the counter, and asked me he believed those two quarters were his money, and I said, `Yes, sir; that is your money;' and he picked the two quarters up, and put them in his pocket, and went out the back door."

The testimony of the defendant, in his own behalf, is as follows: "I was acquainted with Luther Phelan. Had known him some three years. I never had any difficulty with him previous to this trouble. I was up in my room at the McLelland hotel, took a bath and came down about 8 o'clock, and walked over to Charlie Morrison's. Bud Dunn and two or three others were standing there, talking and drinking. I stood and talked a little while with Dunn, and then I left him and went to the barber shop and got a shave. As there was a crowd there, I was some little time getting a shave—I suppose about half past eight. I then walked back to the Mirror saloon, and Bud Dunn was standing right in the front door. The Mirror is Charlie Morrison's place corner of Fourth and Austin street. Bud and I stood there and chatted some little time, and I said, `Bud, let's go over to the Turf, and get something to eat.' He said, `No. I thank you, I do not feel like eating, but will walk up there with you.' We started over to the Turf, and stopped in front of Matthews Brothers, and looked in the show window. We stood there about five or ten minutes. Then we started on to the Turf, and Bud met some of his friends right in front of the Curry Liquor Company, right next door to the Turf. Bud then said to me, `You go and get something to eat, and we will wait for you here, and then go up and see old George;' meaning George Cook at the St. Charles. I walked into the Turf, and there was nobody but the negro porter behind the bar. Not a soul in the house, up in the front part, so I said to the porter; `Well, Henry, business seems to be rushing with you. Have they worked the bartenders down?' He said, `No, sir; Mr. Fuller is back eating his lunch.' I walked back in the dining room, and Ed Fuller and John Ashenhurst, and, I think, Ben Riddle, were sitting at the table eating. I looked on the lunch counter, and did not see anything that appealed to my appetite. They asked me to come and eat with them. I thanked them, and told them, `No, I didn't want anything to eat;' that I didn't see anything there, and I thought I would wait until I got a little hungry. Fuller commenced talking to me, and I commenced talking with him. He asked me to eat with him, and I told him that I saw nothing that appealed to my appetite, but if he had a gun I would borrow it until to-morrow morning. He said: `I am sorry, old man, but there isn't a gun in the house. I have worked here for two years and a half, behind this bar, and there never was a time there was not from one to six guns in the house.' He said, `Well, this is a time there isn't one in the house.' I said, `All right, pal;' and I turned around, and walked back up to the bar, and walked up to the negro porter, and said to him, `Mr. Fuller said to give me one of those guns in the drawer.' I just did it as a joke, to see if there was a gun there. The negro opened the drawer, and said, "which one is yours, Mr. Mark?' and handed up two. I said, `That is it.' I just got it as a joke. Fuller `hollered' at me in the meantime, `Don't take that gun, it will cost you a drink.' I went out, and Bud Dunn was standing out in front waiting for me, and we walked up to the St. Charles. I had not seen Luther Phelan that night up to this time. I had had no altercation with him. I just took the pistol as a joke on Ed Fuller, because he told me there was no pistol there. Budd Dunn went with me to the St. Charles. He said, `Let's go over to my old place and get a drink.' His old place that he referred to was the Royal Bar. He had been working there, so I says, `All right;' and we went out the back way to the Royal Bar. When we got there Louey Thompson was behind the bar, and Luther Phelan and some man—this man Moore—were playing the slot machine. Bud Dunn says, `Let's all shake dice for the drinks.' So Louey Thompson grabs the dice box and sets it up on the counter; and I says, `Come on, Luther, and shake dice with me; we are all going to shake dice for the drinks.' Luther says, `No, I don't want to shake dice. I have got money to pay for my drinks when I want one.' I said, `Come on, pal, and shake with us.' He says, `I know when I want to drink and who to drink with, and I know when I want to shake dice, and when I want a drink I will buy it.' I says, `All right, I did't mean any offense at all.' So Louey Thompson says, `Come on, I'll shake with you.' So we shook dice. First dash, low man buy the drinks. I got stuck. I laid a dollar on the bar and turned around to Luther, and said, `Luther, come up and bring your friend and take a drink with me.' He says: `I am a little bit particular as to who I drink with. I told you I didn't want anything to drink, and whenever I want anything to drink I will buy it myself.' I knew Bud Dunn had been working around there for Luther, and I thought probably they had had some difficulty or some difference or something; and I came in there with him, and I thought I would take him out as quickly as possible, and turned around and said to Bud Dunn, `Come on, let's go.' And after Bud Dunn, Louey Thompson, and I had had our drink we went out. After we got out on the street starting back around to the St. Charles Hotel, I asked Bud, `What's the matter? What is the trouble with you and Luther?' He say, `Nothing.' I says, `O, don't tell me nothing?' I said, `Don't you see how he was balling you.' He says, `He was not balling me; he was balling you.' I says, `Yes, he was balling me, but he was talking to me, and he was balling you through me.' He said, `O no; you can't hand old Bud that.' I said: `That could not be possible, as we have always been the best of friends. There isn't a day that I don't go in his place and spend from 25 cents to a dollar every day since he has been around...