Russell v. State, 14518.

• Decision Date: 09 December 1931
• Docket Number: No. 14518.,14518.
• Citation: 44 S.W.2d 727
• Parties: RUSSELL v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W.2d 727

RUSSELL v. STATE.

No. 14518.

Court of Criminal Appeals of Texas.

December 9, 1931.

Commissioners' Decision.

Appeal from District Court, Trinity County; S. W. Dean, Judge.

B. Russell was convicted for murder, and he appeals.

Reformed and affirmed.

Phillips & Bell, of Trinity, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, J.

Appellant was found guilty of the murder of one Luther Evans; his punishment was assessed at 15 years in the penitentiary.

The deceased had rented and was living on a place owned by a Mr. Smith, and it appeared that some misunderstanding had arisen as to the right of appellant to cut timbers from said land for the purpose of making ties; while there had not been any personal difficulty or altercation between the deceased and appellant, it appears from the record that the deceased had stopped some of the persons working for the appellant from cutting timber on said land that he had rented.

From the testimony of one Will Rice Barclay, introduced by the state, it appears that Mr. Smith, the owner of the land, had left a letter at his father's house for the deceased, Luther Evans, and had requested them to deliver the letter to the deceased; that, on the morning of the difficulty, he and his father went to the place where the deceased was living and delivered the letter from Mr. Smith to the deceased. That when they delivered the letter to the deceased, he asked the witness to read it, which he did; that at the time he read the letter, besides he and his father, there was present a man named Riesenhofer and Aud Parish, who also lived on the Smith place. The deceased asked them if they would take him up to where appellant was on said premises so as he could deliver the letter to him; that, when they got to the field gate near which the appellant was making ties, they all walked up to where the appellant was. The deceased walked up and spoke to the appellant and told him that he had run some of his men off early in the morning who had been there making ties; that he had come down to tell the appellant that it was all right to go ahead and make ties, and reached in his pocket to get the letter that he had received from the owner of the premises and started to hand it to the appellant. The appellant stated, "Don't come any closer, don't hand me anything, I don't want it. You have been interfering with my boys down here and I am tired of it and don't hand me anything." The deceased then said, "I just want to give you this letter I just got and I didn't know it was all right for you to make the ties." That the appellant then began cursing and said he didn't want it, and told them all to get off the premises. It then appears that Aud Parish faced the appellant and said, "God damn you, you can't scare me," and that, when he said that, the appellant already had his hand under the bib of his overalls, and when Parish told him that, the appellant shot. That he thought the first shot hit Aud Parish in the face, but he had ducked and it hit his hat, and that the said Parish had his hands up to his face as if to prevent him from shooting him in the face. To the best of his knowledge, he shot three times, one of which shots was fired at his left, and he looked back and the deceased had run into a ditch, and just as the fourth shot was fired the deceased was sliding off into the ditch. He testified that nobody but the appellant fired any shots out there that day; that somebody commenced hollering "Will," and his father said, "Luther is calling you." That he then ran to the ditch that Luther had crawled into, and when he got to the ditch the deceased was lying flat on his back; that his jumper was unbuttoned, and deceased's gun was in his scabbard. Deceased told him he was shot and asked him to do something for him; that he thought the deceased was shot in the back of his head, and he asked deceased, "Do you want me to look?" and he said, "No, don't touch me, just leave me alone until a physician gets here." That the appellant at that time walked around where he could see them in the ditch and said, "Don't touch that man, leave him alone"; that he told the appellant, "I want to get a doctor," and he said, "No, don't get a doctor, don't get anybody, just leave him alone," and that the appellant still had his gun, and he put up his hands and said, "Don't shoot." That the fellow that was with the appellant said, "He isn't going to shoot you," and the appellant said, "No, I am not going to shoot you, there is one man already shot here," and told him, "All of you come out of here and leave him alone"; that he walked out to the road where the witness' truck was parked and then walked off. The witness then got in the truck and went to the 'phone and called a doctor.

The testimony of this witness was corroborated substantially by his father, a witness for the state, and also by Aud Parish, who was introduced as a witness for the defendant.

The testimony of the doctor called to wait on the deceased was to the effect that the deceased had been shot in the back below his right shoulder blade, the bullet ranging up; that there was an injury to his spine by reason of said shot, and he was paralyzed in his lower limbs and had no use of his body from the wound down, but he had the use of his hands.

The evidence further shows that the deceased died from the effects of said wounds a day or two later.

There are only two bills of exception appearing in the record proper. Bill No. 1 sets out that, before the argument in the case was begun, the sheriff placed a number of chairs within the railing and bar of the court and in close proximity to the jurors, and invited the wife of the deceased and several minor children to occupy said seats, and that they did so occupy them, and during the period of about one hour, while counsel for the state and defendant were making the two opening speeches to the jury, said widow and children of the deceased frequently, obviously, and audibly wept in the presence, sight, and hearing of the court and jury all through said period without objection, protest, or exception on the part of any one, except that the court beckoned to the sheriff and in a low tone of voice instructed the sheriff to tell the family of the deceased that they must stop crying or leave the courtroom, after which they were more composed, but some still quietly wept and sobbed. That the district attorney, in closing his argument for the state, used the following words: "The counsel for the defendant will make a plea to you, gentlemen of the jury, for sympathy for the accused and his family, but I want to say to you that I am the representative of the weeping widow and orphaned and weeping children now before you, and in their behalf I appeal to you for a conviction. In behalf of this sorrowing woman, I say to the defendant, in the language of Poe to the Raven, `Take thou thy beak from out my heart, thy bust from off my door.'"

The bill further shows that counsel for the defendant, rising to reply, soon, but not immediately upon the conclusion of the above-quoted remarks, and before beginning his argument to the jury, addressed himself to the court, and said substantially as follows: "I wish to object, protest, and except to the presence within the bar of the weeping family of the deceased and to object and except to the argument of the district attorney, especially that part above quoted, on the ground that it was an improper invasion of the rights...