Shaw v. State

• Decision Date: 08 May 1895
• Citation: 31 S.W. 361
• Parties: SHAW v. STATE.
• Court: Texas Court of Criminal Appeals

31 S.W. 361

SHAW v. STATE.

Court of Criminal Appeals of Texas.

May 8, 1895.

Appeal from district court, Cooke county; D. E. Barrett, Judge.

S. M. Shaw was convicted of murder in the second degree, and appeals. Reversed.

Potter, Potter & Cofer, for appellant. Mann Trice, Asst. Atty. Gen., for the State.

HURT, P. J.

This conviction is for murder in the second degree, the punishment being assessed at 20 years in the penitentiary. The uncontroverted facts in this case establish that the deceased was a young man, about grown, hired to work for the defendant about the 1st of February, 1893, on his farm in Cooke county, at $12.50 per month, with board and washing; that he continued in the employment of defendant until about the 16th or 17th of July of said year, when, not giving satisfaction to his employer, he was discharged. At the time he was discharged, the defendant was engaged in running a threshing machine, and deceased was one of the hands, and his business was to fire and run the engine. The discharge occurred on Friday or Saturday, and, on the following Wednesday, Jones, the deceased, came to Cook's, where the defendant was then engaged in threshing wheat. An altercation occurred between defendant and deceased. The defendant struck the deceased a blow on the head, which knocked him down, and from the effects of which he died the next day. As to the details of the occurrence there is some difference between the testimony of the witnesses for the state and defendant on the salient points. We will proceed to give the substance of the evidence.

It appears that the beginning of the trouble occurred with reference to the discharge of the deceased, Jones. The witness Crane testified that he was present at the time the discharge occurred; that something occurred to stop the machine, and after they had fixed it, and started to begin running again, that the steam had gone down. Shaw said to Jones: "What in the world's the matter? You have got no steam; and you have done this way before. You get down from here, and get away. I won't be bothered with you any longer." And then Jones said: "Well, you will have to pay me, then." And Shaw said: "I will settle with you and pay you for every day's work that you have done." Shaw said to Jones that he had given him more trouble than any man he had ever had anything to do with in his life. Shaw says: That, when he found that the steam had gone down, he asked Jones what was the matter; and he said, "I am getting tired of this damn outfit," and that he then told him (Jones) to get away and go off from there. Jones wanted his pay. Shaw remarked to him that he would settle with him, and Jones went off to the provision wagon, and came back by the separator, and demanded his year's wages, and said, "You have discharged me. I want you to pay me my year's wages, according to the contract." That he told him that, if he had complied with his contract, he would have paid him his whole year's wages; that he would settle with him for every hour's work that he had done. Deceased said: "If you don't pay me, I will sue you before the sun goes down." Defendant then said: "Go on, and sue, and don't come around me any more." It appears that deceased then left.

There is some evidence that, between that time and the killing, deceased went to Gainsville, to consult a lawyer about collecting his wages from defendant, and he mentioned the matter to several persons, and, in that connection, made some threats against the defendant. To Will Solomon, a witness for defendant, he said he had come down to see if he could make anything out of Shaw by law; that, if he found that he could not get it out of him one way, he would another. To Ance Sullivan, another witness, he used about the same expression. D. H. Pettcord testified, about 10 days before the killing, but after the discharge of deceased, that he had a conversation with deceased, in the course of which Jones said that he intended to kill Shaw if he did not pay him; that he had as good a pistol as was ever fired; that he had run away from Tennessee for killing a damn nigger; that he would kill Shaw or get his pay. Joe Dunlap testified that deceased told him he was going to town to see if he could get his wages out of Shaw by law, and that, if he could not get it that way, he would get it some other way; if he didn't pay him, he would shoot hell out of him, and leave the county; that he would give him three days to pay him. One of these witnesses, to wit, Ance Sullivan, communicated to defendant what Jones had told him, to wit, that he was going to make him pay his year's wages, and that, if he did not one way, he was going to get it some other way. There is testimony in the record that Jones owned a pistol a short time prior to the homicide. It was also in testimony that he went to where the defendant was threshing wheat in the neighborhood, to one Trew's farm, on Monday succeeding the Saturday on which he was discharged, stayed around the thresher awhile, and conversed with the hands. Shaw was then present, but no conversation took place between the parties. The evidence also established that deceased weighed about 130 or 135 pounds, and defendant 150 or 160 pounds. The record also shows that the defendant was indebted to Jones at the time of the homicide for a part of his wages. Defendant himself says that he owed him $36.50, which he had been ready to pay, but that Jones claimed the whole year's wages. On Wednesday, 20th July, about 3 o'clock in the evening, it appears that Jones went to where defendant was threshing wheat at Cook's farm, which is the place where the homicide occurred. As to what occurred here the witness Tom Rossen states: That "Jones came up, and leaned up against the hind end of the coal wagon. He was standing looking at the engine when I first saw Shaw. He was talking with Jones. They were both at the coal wagon. He was standing out west of the wagon, towards the north side of the engine. Jones was talking to him about suing him for the year's work. Shaw said, `I understand you are going to sue me for a whole year's work.' I don't recollect what Jones said. Jones said afterwards, `You haven't got anything but a damn little homestead, and you beat the people out of that.' Shaw told him not to talk that way. Shaw didn't do anything then, but pretty soon he told Jones to take his hands out of his pocket, and told him two or three times before he hit him with the stick. He told him once or twice after he picked up the stick. Shaw had hold of the stick with both hands when he hit him. He hit him on the head. He struck him twice, one glancing blow, and then struck back. I never saw any effects of the first lick. He struck the first lick at the right side of the head. He was knocked down. He fell with his head under the apron of the engine. He was knocked down at the second lick. That lick hit him on the left side of the head, and knocked him down. He raised up a little on his elbows, remained in that position a little while, and then stood up. When he raised up on his elbows, he said to Mr. Shaw, `Don't hit me any more,' or `Don't let him hit me any more,' or something like that." That he carried him to one Brown's house, not far off, and laid him down, and sent for a doctor. This witness testified: That, at the time the killing occurred, deceased was leaning against the wagon with his left hand in his pocket. That he could not see the other hand. Shaw was standing in front of him, three or four feet off, when he told him to take his hands out of his pocket. That he told him two or three times. The first time when he started to pick up the stick, and continued telling him until he hit him. Jones did not take his hands out. As to the stick, he testified he did not know how long it was. It was a piece of wood which was used to burn in the engine. That he never saw the stick any more after defendant hit Jones. When the stick first came up and then came down, it seemed that he had brought the other hand to it in bringing it down. This witness also testified that during the conversation he heard Jones say to Shaw: "If I was to sue you, I couldn't get anything out of you; you having nothing but that damn little homestead, and you beat the people out of that." Shaw told Jones: "You have no business here. You have been around here bothering me, and giving me a great deal of trouble, and I want you to go away from this machine, and let me alone." Jones told Shaw that there were judgments hanging over him (Shaw). Shaw replied that he would give $500 for every one that he could find. Something was said about shooting a nigger in that conversation. Shaw said that, just when he needed Jones most, he had stated to him that he had killed a nigger in Tennessee, and that they had found out where he was, and that he had to skip out. Jones then said: "Damn you, I did kill a nigger."

James White testified for the state: That he was present at the killing. Saw Rossen and Jones go to the machine. That they went up to the engine, and Jones leaned up on the coal wagon. That he had his right hand in his pocket, and his left partly. That he saw Shaw walk around towards the front of the engine, and stoop down, and pick up a stick, and step forward, "or it looked like it to me," and then the boy got out of my sight. That he did not see the lick struck. He saw the boy raise himself, and sit up in front of the engine. That he saw the stick afterwards. That it was a straight elm wood, brought there, and about 3 inches in circumference, and 2½ to 3 feet long. That he thought the stick was the same size from one end to another.

Oakley Snipes testified, in substance: That the first time he saw Jones he was leaning against the coal wagon, two or three steps east of the engine. That the parties entered into a conversation. That he did not hear how it began. Heard Jones say something like "How did you get it?" "Then he said something I did not...