Scott v. State

• Decision Date: 02 April 1947
• Docket Number: No. 23628.,23628.
• Citation: 202 S.W.2d 669
• Parties: SCOTT v. STATE.
• Court: Texas Court of Criminal Appeals

202 S.W.2d 669

SCOTT v. STATE.

No. 23628.

Court of Criminal Appeals of Texas.

April 2, 1947.

Rehearing Denied June 4, 1947.

Request for Leave to File Second Motion for Rehearing Denied June 11, 1947.

Appeal from District Court, Bastrop County; John H. Tate, Judge.

M. M. Scott was convicted on a charge of murder, and he appeals.

Judgment affirmed.

Polk Shelton and Wright Stubbs, both of Austin, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The homicide for which appellant is charged took place in the City of Austin. A conviction resulted from the first trial, in Travis County, with a five year sentence. The case was reversed (see Scott v. State, Tex.Cr.App., 190 S.W.2d 828) and thereafter transferred to Bastrop County. The present appeal is from a conviction with a sentence of twenty-five years in the penitentiary.

There is no material difference in the statement of facts as found in the two appeals. The statement in the former opinion is here referred to and is considered sufficient as a basis for the discussion of the questions presented at this time.

It is also true that the questions of law raised, all of which relate to the admissibility of evidence, were likewise in the former appeal and, while they were considered, the case was reversed because of an error in the court's charge and the questions as to the admissibility of the evidence were not discussed in the opinion. We considered then as now that they reflected no error.

Recalling the evidence in the former case, trouble had existed between appellant's son and a Mr. Stark, whose wife was a sister to the deceased Jesse Singleton for whose murder the appellant was convicted. The Starks were living in a house owned by Scott and the difficulty which culminated in the double killing has extended over a period of several weeks. The state was permitted, over objection, to prove things said and done by appellant and his deceased son over this period of time, even up to and including the morning of the killing. Some such statements may be classified as threats, but the effect of all was to show the bitter feeling which appellant himself had against the Starks, in whose behalf Singleton appeared. When the Scotts came to the residence in the morning and demanded the immediate eviction of their tenants, Mrs. Stark protested and threats were made against her. She called for her brother and for the officers. The brother appeared first, went into the house and consulted Mrs. Stark while appellant and his son remained at or near the street. Singleton then went out, with his gun displayed at his belt, and immediately approached the subject. Appellant knew that he was Mrs. Stark's brother. He knew that a conference had just been had between them. Singleton was taking the place of his sister, whose husband was out of town, and the bitter feeling which Scott had for Mrs. Stark and her husband would naturally be imputed to him for Singleton, under all of the circumstances of the case.

Appellant took the witness stand in his own behalf at this trial and denied that he shot Singleton, claiming that all shots were fired by the son after Singleton had first fired at him. He disclaimed any part in the tragedy, though admitting the application of the law of principals. It is a pertinent inquiry, on the part of the jury, to find and determine the feeling existing between appellant and the deceased Singleton. It appears to the writer that this conclusively determines the issues against appellant.

We have carefully considered the authorities cited in appellant's brief and do not think they are pertinent. Threats were not made against Singleton originally, but they were made against the Starks who were directly connected with the difficulty. This fact distinguishes the instant case from all of the authorities which appellant has cited on the subject of threats. It is particularly noted that Texas Jurisprudence, Vol. 22, pages 767, 768, lays down the rule as quoted in appellant's brief, that, "A previous difficulty between the defendant and a third person may be proved if it led up to the killing, or involved the deceased in any way, or tends to reveal the defendant's motive or state of mind. But if the difficulty was in no way connected with the homicide, evidence of it is inadmissible." See also authorities cited thereunder.

We believe that this general discussion sufficiently gives the view of the court on each and all of the questions raised by the appellant.

The judgment of the trial court is affirmed.

HAWKINS, P. J. absent.

On Appellant's Motion for Rehearing

DAVIDSON, Judge.

A sharp conflict arises under the testimony as to who fired the shot that killed the deceased. Mrs. Stark, sister of deceased, testified that it was the appellant; appellant and the witness Lundell testified that it was W. W. Scott, son of appellant—and not the appellant, himself.

Both theories were submitted to the jury—that is: that appellent killed deceased, or aided W. W. Scott, as a principal, in so doing.

The jury, without designating upon which theory that conclusion was based, returned a general verdict finding appellant guilty.

Appellant insists that he was entitled to have the jury instructed upon his right to shoot in defense of himself, notwithstanding the fact that he denied shooting the deceased. A proper exception was reserved to the charge for failing to submit that defensive theory. This contention was not insisted upon by appellant on the original submission of the case.

We note that the trial court instructed the jury "that if you do not believe, or if you have a reasonable doubt that the defendant, M. M. Scott, fired the shot that killed the deceased, Jessie Singleton, then you will acquit him, unless you find him guilty under the instructions hereinafter given you." The language, "instructions hereinafter given you," had reference to the application of the law of principals. The effect of such charge was to tell the jury that if appellant did not fire the shot which killed deceased, he could not be convicted upon that theory.

Appellant insists, however, that there was testimony showing that he did shoot the deceased, which testimony, together with other facts in evidence, raised the issue of self-defense upon his part.

If appellant's contention be sustained by the record, he would be entitled to such a charge—and this, notwithstanding he denied shooting the deceased. Knight v. State, 84 Tex.Cr.R. 395, 207 S.W. 315.

The facts, then, must be reviewed in the light of that contention.

We note, first, the testimony of Mrs. Stark. She says that deceased, after having talked over the telephone with the sheriff's department, "went out toward W. W. Scott and M. M. Scott, out in the front yard. With reference to their automobiles, well, the automobile was parked in front of the house and the truck was parked down the drive. They were in their cars until he walked out there, and then they walked over toward him. Jessie Singleton (deceased) walked up toward W. W. Scott. I heard my brother say, `Whats the matter, Winfield; can't you give her a chance to get out?' I couldn't hear anything after that. He kept a coming closer—M. M. Scott (appellant) kept coming closer toward my brother, and my brother was standing close to W. W. Scott, real close. My brother was standing there—may I show you how he was standing? He walked out there like this (indicating); he had a habit of standing with his arms across his stomach. He was standing that way, the way I have indicated, with his hands across his stomach. Well, I seen him look toward M. M. Scott—thats the defendant; and, I presume * * *. He brings his gun, the long-barreled gun that he had drawn on me, and fired at my brother and...