Rutherford v. State

• Decision Date: 14 April 1926
• Docket Number: (No. 9694.)
• Parties: RUTHERFORD v. STATE.
• Court: Texas Court of Criminal Appeals

283 S.W. 512

RUTHERFORD v. STATE.

(No. 9694.)

Court of Criminal Appeals of Texas.

April 14, 1926.

State's Rehearing Withdrawn May 5, 1926.

Appeal from District Court, McCulloch County; J. O. Woodward, Judge.

Dave W. Rutherford was convicted of murder, and he appeals. Reversed and remanded.

See, also, 277 S. W. 669.

W. Marcus Weatherred, of Coleman, and Newman & McCollum and J. E. Shropshire, all of Brady, for appellant.

W. U. Early, Dist. Atty., of Brownwood, Critz & Woodward, of Coleman, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

MORROW, P. J.

The offense is murder, punishment fixed at confinement in the penitentiary for life.

About 10 o'clock at night on the 16th of February, 1924, the deceased, J. H. Griffith, a deputy sheriff, received a gunshot wound from which he afterwards died. The wound was inflicted by the appellant, who, after shooting Griffith, fired several shots at Conley, a constable who was with Griffith. Several shots were fired by Griffith at the appellant, and he was wounded. The tragedy occurred in an alley in the business portion of Santa Anna, a town of about 1,500 inhabitants. Ragsdale and wife were residents of Santa Anna, their dwelling place being at a different part of the town some distance from the business center where the homicide took place. Mrs. Ragsdale testified that in the afternoon, at about 5 or 6 o'clock, she saw the appellant walk through an alley which was adjacent to her premises. As we understand the record, there was a garage in the back of the Ragsdale premises, the garage bordering on the alley, about 65 feet from the part of the dwelling at which Mrs. Ragsdale claims to have stood. She was not acquainted with the appellant, but knew him by sight. According to her testimony, as the appellant passed through the alley, the garage obscured him from her view. It was some five or six minutes after she lost sight of him until she saw him again. After he had passed through the alley, she found a bottle of whisky behind a plank which was nailed to the side of the garage. She took the bottle to her house, first putting it in a dresser drawer and later in her stove. Some 10 or 25 minutes after appellant had passed through the alley, she saw three Mexicans pass through it. They remained in the alley for some five or six minutes. She said the bottle of whisky was in plain view of any one traveling east. She disclaimed seeing the appellant deposit the whisky or seeing anything in his possession, nor did she see anything in the possession of the Mexicans mentioned. She had not previously on that day been in the alley. She reported the matter to her husband, and about 8:35 o'clock in the evening she related it to the deceased, Griffith, what she had seen. Griffith got out of her stove the bottle of whisky which she had deposited there. She did not detail the conversation between herself and Griffith further than to say that "I told him who I saw coming down the alley, and he asked me if there was any one else, and I told him there were three Mexicans." The husband of Mrs. Ragsdale testified that he heard the conversation between the deceased and Mrs. Ragsdale. He said:

"* * * And she just told him about what happened at the house — said Dave Rutherford came by and after he went by she went out there and got this bottle and taken it in the house; that she got it right down by the side of the garage, behind a plank."

From Conley's testimony we learn that after Griffith received information from Mrs. Ragsdale, the witness, in company with Griffith, went into the alley where the horse and buggy were situated. They concluded to return and search the buggy. When they returned, appellant and Shelton had gotten into the buggy and started to leave. As the appellant entered the alley, Griffith remarked: "I think we ought to arrest him. What do you think?" The witness replied: "I would arrest him." Called by the deceased, appellant got out of his buggy and went back to meet him while Conley went to the buggy. Appellant and deceased conversed in low tones. The witness understood no words except that he heard deceased say: "Now, don't go off, Dave." Appellant's hands were in front of him. The hands of the deceased were at his side. The deceased grabbed at the appellant's pistol, but it was discharged before the deceased touched it. The witness then ran towards the combatants and was shot by the appellant, one bullet entering his clothes and another his leg. Deceased, in the meantime, was firing at the appellant.

On August 3, 1923, antecedent to the homicide, appellant had been arrested by the deceased. There was evidence that at that time the appellant was intoxicated. There was also evidence that the deceased, while he had been designated as a deputy sheriff, had not qualified as such, though he had previously been city marshal. A difficulty took place which resulted in the prosecution of the appellant for an assault and his conviction upon a plea of guilty, he having wounded the deceased with a knife. There was evidence that subsequent to that time appellant had said that if the deceased undertook to arrest him again he would be killed. At the time of the homicide and for a long time prior thereto J. J. Gregg was a justice of the peace of the precinct. He resided a short distance from the business portion of the town of Santa Anna, maintaining an office in the town. He was editor and publisher of the local newspaper. According to his testimony, he was in town on the night of the homicide, and was in his office both before and after the evening meal; that it was his custom to attend a picture show in its first performance, and he may have gone there on the night in question. No application was made to him for any warrant of arrest. His office was about 200 feet from the place where the tragedy took place. He was a witness to the occurrence on August 3, 1923, and described the encounter, saying, in substance, that upon hearing a disturbance he went there and saw the appellant down on the sidewalk with the deceased having his knee on the appellant's head or neck and holding his hand. A few moments later he saw the deceased strike the appellant, who at the time was a prisoner. The witness protested and threatened to arrest Griffith if he repeated the blow. From his testimony, the deceased was aware of the fact that the witness was a justice of the peace and had frequently had official business with him.

Appellant introduced testimony to the effect that a month or more subsequent to the encounter mentioned deceased had said that he and the appellant had had trouble, and "the next time me or Conley go after him, we are going to kill him." The witness said: "Don't do that; it will get you in trouble." Deceased replied: "No; I have got my deputy papers so it won't go hard on me." That similar threats had been made at different times was given in the testimony of several witnesses, namely, McBee, Crider, Croft, Harrison, Hinds, and Shields. There was some evidence of reconciliation.

In rebuttal the state proved additional threats of the appellant to kill the deceased; also expressions of ill will. There was expert testimony, pro and con, based upon the difference in the report of the pistols, bearing upon which was fired first. From the appellant's testimony, we take the following:

"Just prior to the shooting, before I went into the alley, I went to the barber shop to get Walter Shelton to let's go home. I asked him if he was ready to go home, and he said, `Yes, let's go home'; and we walked out on the sidewalk. * * * He was kinder rolling a cigarette, and were walking along leisurely to the alley and went on to the buggy. I saw Mr. Griffith as I went in the alley; he was standing drinking soda water at the little hamburger joint. I did not have any whisky that day at all; there was no whisky in my buggy. I did not go in the alley by Mrs. Ragsdale's house at all that day; I didn't put a bottle of whisky there by her garage. I didn't know anything about any whisky. * * * Walter Shelton untied the horse. We got in the buggy. After I got in the buggy, I had gone, I suppose, about 80 feet, going east, in the direction of my home. I had started home. * * * I heard Uncle Joe Griffith, and I looked around, and he put his hand up (indicating), and I got out and went to see what he wanted. * * * Mr. Griffith told me not to hurry off, to stay in town a little longer until Mr. Pauley got down there. I asked him what for. He told me he had a case of transporting whisky against me, and I asked him if he had a warrant for my arrest, and he said, `No.' Then I just turned around and started on back to my buggy, to go home. As I got near the buggy Uncle Joe was walking along kinder with me, * * * and as I neared the buggy, within 8 or 10 feet, he says, `Don't you attempt to leave town; if you do me and Conley is going to kill you.' I says, `Don't do that, Uncle Joe.' I had heard threats and things that they were likely to kill me. I says, `Don't do that, Uncle Joe; you have got no right to hold me by force.' * * * At that point he began pulling his gun, and about the time I turned to look at him that way he was about ready to fire. * * * I ran my hand in my pocket and pulled my gun out; I didn't get it more than about this (indicating), until he fired and hit me right here (indicating) on trousers. * * * I saw he was going to fire and felt that my life was in danger; I didn't know whether to try to run; I thought possibly he would shoot me as I tried to run, and I pulled my gun as he fired. * * * When I fired Uncle Joe staggered back, and I thought he went...