Rippy v. State

• Decision Date: 03 June 1931
• Docket Number: No. 14387.,14387.
• Citation: 53 S.W.2d 619
• Parties: RIPPY v. STATE.
• Court: Texas Court of Criminal Appeals

53 S.W.2d 619

RIPPY v. STATE.

No. 14387.

Court of Criminal Appeals of Texas.

June 3, 1931.

Rehearing Granted June 24, 1932.

State's Rehearing Denied October 26, 1932.

Commissioners' Decision.

Appeal from District Court, Denton County; B. W. Boyd, Judge.

John Rippy was convicted of murder, and he appeals.

Reversed and remanded.

Robt. H. Hopkins, of Denton, Alvin M. Owsley, of Dallas, Owsley & Owsley, of Denton, and Dan Moody, of Austin, for appellant.

Earl Street, Co. Atty., and B. T. Fitzhugh, Asst. Co. Atty., both of Denton, E. M. Overshiner, Sp. Pros., of Abilene, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for 35 years. A former appeal is found reported in 113 Tex. Cr. R. 578, 24 S.W.(2d) at page 841.

Appellant had leased his filling station to deceased, John Hornsby. The lease was to expire August 1, 1928. The homicide occurred at the filling station on July 25, 1928. It was the theory of the state that appellant killed deceased in order that he might get immediate possession of the filling station. In support of this theory the state offered testimony to the effect that appellant stated to the county attorney that he did not like the way deceased carried on his business; that he was having some trouble with deceased; that the county attorney might have to prosecute him for something else besides running a slot machine. It appears that the county attorney had theretofore forced appellant to take a slot machine out of his place of business. On the question of appellant's desire to obtain immediate possession of his filling station, witnesses for the state testified, in substance, that appellant had made arrangements shortly prior to the homicide to lease his filling station to another man, and that it was his desire to place said party in immediate possession. It was further in evidence, from state's witnesses, that appellant had expressed disgust at the fact that deceased would not sell intoxicating liquor at the station.

Hornsby, with a shotgun wound in his body, was found dead at his filling station shortly after 6 p. m. His watch, which had been struck by some shot, had stopped at 6:09 p. m. Appellant was seen at the filling station carrying a 12-gauge single-barrel shotgun a short time before the body of deceased was found. Two boys were at the filling station when appellant approached. After buying some soda water, they left appellant and deceased at the filling station, and rode up the highway on their bicycles. At the time they left the station there was no one there except appellant and deceased. After traveling up the road some distance these boys heard two shots, which they testified sounded like the reports of a shotgun. Immediately after the second shot was fired one of the boys, according to his testimony, looked back toward the filling station and saw appellant standing near the station with a shotgun in his hand. He could not see deceased. Tracks led from the filling station to appellant's house, where he was arrested less than an hour after the killing. A shotgun shell which fitted appellant's gun was found near the body of deceased. Witnesses testified that it was a Super-X shell. The plunger had marked the shell below the cap. Witnesses testified that in their opinion the shell had been recently fired. When appellant was arrested a single-barrel shotgun and several shells were found in his house, and a Super-X shell, which had been fired, was found just outside appellant's door. The shell found outside the door showed that the plunger had made a mark below the cap. The shells found in the house were not Super-X shells. The arresting officer, Howerton, testified to having made an experiment with appellant's gun for the purpose of determining where the plunger struck the shell. Removing the powder and shot from one of the shells found in the house of appellant, the officer placed it in appellant's gun and pulled the trigger. The plunger struck the shell below the cap, at approximately the same place as found on the shell outside the door and the one picked up near the body of deceased. Two state's witnesses testified that they had borrowed appellant's gun shortly before the homicide, and that, upon returning it, they had given appellant several Super-X shells. Officer Howerton testified that appellant's shoes fitted the tracks leading from the filling station to appellant's home. There was a cartridge in appellant's gun at the time he was arrested. It had been snapped three times, according to the testimony of Howerton. It appeared that each time the cartridge had been snapped it had been turned around in the gun. Following the tracks from the filling station to the house, Arresting Officer Howerton came to appellant's residence. Upon being called, appellant came to the door, and, according to the testimony of the officer, the following conversation ensued: "I said `Mr. Rippy I was making an investigation and I thought may be you might be able to give me some information. Did you happen to hear any shots fired down near the underpass this afternoon?'" According to the version of the officer, appellant answered in the negative, and then hesitated for a moment and said: "That old man was a good old man. I was down there at two o'clock and haven't been back since." The officer said that appellant made the statement before he had advised him (appellant) that deceased had been killed. Several witnesses for the state testified that they passed the filling station after 6 p. m. but did not see deceased. When the body of deceased was searched, some checks and a sum of money amounting to approximately $22 were found. There was nothing to indicate that he had been robbed.

Testifying in his own behalf, appellant denied the killing. It was his theory that deceased was killed by hijackers. In support of this theory, he placed on the stand a witness who testified that he had seen some rough looking men in an automobile at the filling station shortly before the death of deceased. He said that these parties appeared to be drinking, and that they had a shotgun in their car. Appellant and several of his witnesses testified to friendly relations existing between appellant and deceased. Appellant said that he left the filling station shortly after meeting some boys there on bicycles. On his way home, according to his version, he shot at a rabbit and snapped his gun in an effort to shoot a second time. He denied that he owned any Super-X shells and declared that the shell found by deceased's body had not been in his gun. Appellant testified that some time before the homicide he had shot at a rabbit in the yard. Appellant admitted that the shells found in the house belonged to him. A witness for appellant testified that he had talked to appellant about leasing his filling station and appellant had stated that it was all right with him for deceased to keep the filling station until August 1st, the date his lease expired. Appellant offered two or three witnesses who testified that they passed the filling station shortly after 6 o'clock and saw deceased there alone, and that he was alive. Several witnesses testified that appellant's general reputation for being peaceable and law-abiding was good.

The court gave a charge covering the law of circumstantial evidence. It seems to be appellant's position that the testimony of his witnesses to the effect that they saw deceased alive after 6 o'clock destroyed the state's case. Attention is called to the fact that witnesses for the state testified that they passed the filling station shortly after 6 o'clock and did not see deceased. Moreover, at the time the shots were fired one of the state's witnesses, according to his version, looked back towards the filling station and saw appellant, with a shotgun in his hand. He could not see deceased. Without again detailing the facts and circumstances in evidence, the opinion is expressed that the circumstances are sufficient to meet the measure of the law. We quote the rule as announced in Branch's Annotated Texas Penal Code, § 1875, as follows: "In order to warrant a conviction on circumstantial evidence each fact necessary to establish defendant's guilt must be proven by the evidence to the satisfaction of the jury beyond a reasonable doubt; all such facts must be consistent with each other and with the defendant's guilt, and all the circumstances taken together must be of a conclusive nature leading on the whole to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the defendant committed the offense charged, and must exclude every other reasonable hypothesis except that of defendant's guilt." In support of the text many authorities are cited, among them being Baldez v. State, 37 Tex. Cr. R. 413, 35 S. W. 664, and Blount v. State (Tex. Cr. App.) 64 S. W. 1050.

Bill of exception No. 1 is concerned with the refusal of the trial court to change the venue. It was averred in the application that there existed in Denton county so great a prejudice that appellant could not obtain a fair and impartial trial. Appellant offered three witnesses who testified, in substance, that in their opinion appellant could not obtain a fair and impartial trial. Six witnesses for the state entertained an opinion to the contrary, and testified that they were well acquainted in the county and had come in contact with the citizenship since the commission of the offense. They said that they had not heard the case generally discussed, and were of the opinion that there was no prejudice against appellant. The testimony pro and con presented conflicting theories. It is the rule that if conflicting testimony as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory; it being his duty to weigh the evidence. A judgment denying the application will not be...