Ripley v. State.

• Decision Date: 06 March 1907
• Parties: RIPLEY v. STATE.
• Court: Texas Court of Criminal Appeals

100 S.W. 943

RIPLEY v. STATE.

Court of Criminal Appeals of Texas.

March 6, 1907.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

P. F. Ripley was convicted of murder, and he appeals. Reversed and remanded.

Baker & Thomas and Taylor & Gallagher, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for murder, a life sentence in the penitentiary being the penalty imposed, for killing Hays.

Exception was reserved to the admission of the testimony of Rathell, Stewart, and Prather. Rathell testified that on a certain morning during the strike, which occurred in Waco, Tex., and four days before the killing, John Tennison had a difficulty at the street car station with a man named Hatfield, who was one of the employés of the street railway company as a motorman. Tennison was at the office of Rathell on this occasion, on the pavement in front of the office, and the witness stated that he saw an assault made by Tennison on Hatfield. Just after this assault, Tennison accused Wilson, who was Rathell's assistant, with having a pistol on his person, and Tennison tried to get into the office of Rathell, to Wilson, who denied that he had such pistol. Tennison insisted that he was armed, and kept following him to the door, and finally Wilson closed the door on Tennison, and told Rathell to call a peace officer, which was done; that Tennison abused him (Wilson) and tried to get through the door in the office.

Stewart testified that Tennison was at the car office several times during the strike, and sought to raise a disturbance; that Tennison was standing at the window of the shed cursing the motorman and most everybody, using vile epithets; that, on one occasion, said Tennison raised a disturbance with Hatfield, and knocked off his hat, and kicked him and struck him in the face; and that, on one occasion during the strike, at the car station, a few days before the killing, he heard John Tennison use vile language toward everybody connected with the street railway company, saying they were damned sons of bitches, and if they would come out of the office he would cut out their hearts and drink their hearts' blood.

Prather testified that, between 12 and 1 o'clock of the day of the killing at night, on the corner of Fifth and Washington streets, Tennison said to Prather: "You ran the first car in the strike, but you had better not run out the first car at night; if you do, Fall & Puckett will do a good business the next morning." Fall & Puckett were undertakers. That Tennison's manner of speaking was in an angry tone. Objection was urged to the introduction of all this testimony. Bills of exceptions show that, at the time of two of the difficulties with Tennison out at the car shed, appellant was present. The court says, in his qualification, appellant was acting with Tennison. The statement of facts, taken down by the stenographer, shows, and the witnesses Hatfield and Stewart testify, that appellant was acting as peacemaker, and sought to quell the disturbance, and make Tennison desist. This testimony was admitted upon the theory that there was a conspiracy existing growing out of the street car strike. Appellant was not a member of the street railway motormen, or in any way connected with the street railway, though he was a member of the Carpenters' Union and in sympathy with the strikers. The bill of exceptions and statement of facts are in conflict. If the court, in qualifying the bill, intended to say or convey the idea that appellant was acting with Tennison in the assault, all the evidence of the witnesses present, including those for the defendant and the state, show to the contrary. If the court intended by his statement that they were acting together to convey the idea that they were sympathizing with each other, and acting together in going to the car shed, this is true; but in the confused condition of the record, and especially for want of clearness in bills of exception, we take it that appellant was not acting with Tennison in making an assault upon the parties, or in pursuing Wilson into the shed. As presented, we are of opinion that this testimony should have been rejected. With reference to the testimony of Prather, we do not believe this testimony was admissible. Appellant was not present when this conversation occurred, and there is no sufficient predicate to show there was a conspiracy to kill, growing out of the street car strike, to admit Tennison's statement to Prather.

Another bill of exceptions was reserved to the evidence of Prather, several days before the killing, to the effect that he saw Bowen on South Fourth street driving a delivery wagon, and came across said track in front of Prather, who was acting as motorman of the street car, and that Prather stopped the car and asked him to move off the track, to which Bowen replied: "By God, you had better not run over me." Several grounds of objection were urged to the introduction of this testimony. The bill is qualified, with the statement that Prather was a nonunion motorman, and was at the time in charge of and operating one of the street cars of the street railway company in the city of Waco, and that Bowen was a co-defendant of appellant and heretofore charged as a principal in the killing of Harry Hays, and the evidence was limited by the court in its charge. We do not believe this testimony was admissible. Appellant had nothing to do with this; was not there. Bowen was simply a deliveryman from one of the grocers in town, and was driving his delivery wagon for the purpose of delivering goods to customers, and drove across the track in front of the street car. This is too remote and is not sufficiently connected up to admit as the act of one of the co-conspirators. In a general way, it may be conceded that the evidence of conspiracy in this case was very weak, indeed, if any was shown. The record shows a strike of the motormen of the street railway employés was in vogue at the time, and that Bowen and appellant were sympathizers, but were not among street railway employés, and, in fact, it shows that a great portion of the people of the city of Waco were in sympathy with the strike of the railway employés. All of defendant's witnesses testify in regard to this matter that there was no conspiracy to kill or to do any bodily harm to the nonunion men, but that they were opposed to the nonunion men being employed by the said street railway company. We understand that a conspiracy can be proved by circumstances, as well as by positive evidence; but there must be evidence, either circumstantial or direct and positive, that a conspiracy has been formed in order to admit the declarations of alleged co-conspirators, in the absence of the party upon trial, and this must be in furtherance of a common design, whether in word or act. Until this has been shown by some testimony during the trial, the acts of third parties will be excluded. It may be stated further that Bowen had been previously convicted and his case reversed, as shown by a report of that case in Bowen v. State (Tex. Cr. App.) 82 S. W. 520, and subsequently acquitted; and the evidence also shows that the case against Tennison, after one or more trials, had been dismissed by the state for want of sufficient evidence to convict. In this attitude of the record, we are of opinion that the testimony set out and heretofore discussed should not have been admitted.

The witness Bruyere was permitted to testify that, immediately before the tragedy, some one in the crowd with him hallooed, as the street car came along, on which Harry Hays was motorman, "Scab." Objection was urged to this. Appellant was either in the crowd or near by, but did not make the...