Saye v. State

• Decision Date: 23 January 1907
• Citation: 99 S.W. 551
• Court: Texas Court of Criminal Appeals
• Parties: SAYE v. STATE.

99 S.W. 551

SAYE v. STATE.

Court of Criminal Appeals of Texas.

January 23, 1907.

Appeal from District Court, Collin County; J. M. Pearson, Judge.

John Saye was convicted of negligent homicide, and appeals. Reversed and remanded.

Wallace Hughston, G. R. Smith and M. H. Garnett, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of negligent homicide, and his punishment assessed at a fine of $1,000, and prosecutes this appeal.

The facts of the case, briefly stated, show that, in the little village of Melissa in Collin county, Tex., some parties had been for some time creating a disturbance by "shooting up the town," as it was termed. The constable was one George; he, being unable to detect the parties who were making a disturbance, applied to appellant, who was deputy sheriff and lived in a town some four or five miles distant in the same justice's precinct, to come over to Melissa and help him arrest the parties. The fact that appellant was not so well known would enable him the better to discover and arrest them. Appellant and Wolford, Crawford, and Barnett, on the evening before the night of the homicide, came over in a hack, arriving at Melissa about nightfall. Wolford, it appears, was to get with the boys, and, according to the state's theory, he induced them to go and shoot up the town, particularly the deceased. According to the defendant's theory, Wolford was to get with them, and, if they went to shoot up the town, he was to go along and help detect and arrest them. After they had been in town a short time Wolford and Barnett, going to Coffman's store, which seemed to be a rendezvous of the parties, and appellant and Crawford remaining in rear of the store, Wolford informed appellant that some of the boys had arranged to shoot up the town. Appellant told Wolford to go with them and get them to come across the railroad beyond the depot, and he and Crawford would go there and remain in waiting until they came. He described one of the parties as wearing a cap and that he was armed with two pistols. Wolford asked if he should do any shooting, and appellant advised him not to, but that, if he did, he would not be arrested. In a short while Wolford and deceased came across and passed the depot in the direction of where appellant and Crawford were in waiting. When they got within eight or ten steps, appellant commanded them to halt, whereupon Wolford ran north and deceased ran south. Appellant and his companion followed deceased, who ran between the depot and a box car, they still following. Crawford was a little in advance, appellant's pistol fired, and deceased ran a short distance and fell mortally wounded. Appellant and Crawford went to where he was. Appellant started to put handcuffs on him, and according to the testimony of the state told him he was not shot but scared. Deceased told him that he was shot and that defendant had shot him in the breast; whereupon appellant asked him how could he shoot him in the breast when he had his back to him running. When appellant discovered that deceased was shot he took the handcuffs off of him and went for a doctor. It seems the next day on the coroner's inquest, appellant and Crawford were both witnesses, and testified, in effect, that they did not know who did the shooting. Appellant denied doing the shooting, and his testimony indicated that he saw a tall man near the deceased, who must have done the shooting. On the trial he testified that he had given his former testimony in because he was scared, did not know the law, and knew that he was innocent of intending to kill deceased. He further testified that when he was pursuing deceased he pulled out his pistol for the purpose of firing it into the ground and frightening deceased to make him stop; that he cocked the pistol, and it was easy on the trigger, and, while he was running, his foot struck the railroad track and he fell and the pistol was accidently discharged, which inflicted the wound on deceased; that he did not know the deceased, and had no intention of shooting him. Deceased was a boy who lived in the town of Melissa, about 16 years of age, and had been previously described to appellant, and, among other things, he was told that he was wearing a cap; that he was armed with two pistols. Appellant was attempting to arrest him, from the description given him, for carrying said pistols, when the homicide occurred. This is a sufficient statement of facts to present appellant's assignments of error.

Appellant complains that the action of the court in refusing to quash the special venire was error. He says the special venire, which was the jury for the term, was composed of 252 jurors, besides those drawn to be used as special venire when the original list was exhausted; that one special venire was drawn of 100 men, out of this 252, prior to the time appellant's special venire was drawn, and, when appellant's special venire was drawn, the 100 names theretofore drawn were not replaced in the box, but this jury was drawn from the remaining 152 names. This, according to our opinion, was authorized by the recent act of the Legislature on the subject of drawing special veniremen. See Gen. Laws of the 29th Legislature, pp. 17, 18, c. 14, art. 647a, as amended.

Appellant contends that the court erred in refusing to allow the defendant to prove by the witness T. M. Beverly, sheriff of Collin county, that the general reputation of the defendant for being a cautious and prudent officer was good. We think this exception is well taken. Appellant was convicted of negligent homicide, and that issue was squarely made before the jury under the indictment, and appellant was defending against a negligent act, and if he was a cautious and prudent officer, that would go to rebut the idea of negligence, and his reputation in that regard would be admissible. We understand the rule to be, wherever an issue is made which brings into controversy the character of defendant, that he is authorized to prove that character by any relevant testimony, and his reputation in that respect was relevant. See Lockhart v. State, 3 Tex. App. 567; Lee v. State, 2 Tex. App. 339; and Johnson v. State, 17 Tex. App. 573. For further authority, see Ency. Ev. vol. 3, pp. 6-9, inclusive.

Appellant complains that the court erred in permitting the state to prove by its witness Cleve McBee that he heard Lee Wolford say to the deceased, on the night in question, to take his (Wolford's) pistol, and go shoot up the town; that he would take it and shoot up the town himself, if he didn't. This testimony was objected to because it was hearsay, immaterial, and irrelevant, not shown to be in the presence of the defendant, not known to him prior to the difficulty, and he...