Simmons v. State, 22435.

Citation170 S.W.2d 742
Decision Date10 March 1943
Docket NumberNo. 22435.,22435.
PartiesSIMMONS v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Stanley Simmons was convicted of murder, and he appeals.

Affirmed.

C. F. Stevens, Dick Young, and Meyers & Hawkins, all of Houston, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a period of ten years.

Appellant's first contention is that the evidence is insufficient to justify and sustain his conviction of the offense of murder with malice aforethought. A careful review of the statement of facts leads us to the conclusion that the evidence is ample to sustain the verdict of the jury.

The evidence adduced by the State, briefly stated, shows that on the night of June 27, 1942, appellant was acting as a bartender at a beer joint in the 4400 block on Yale Street in the city of Houston; that at the time of the killing a number of people were in the tavern; that John Jones (the deceased) and Harold Ruley became engaged in a scuffle; that Joe Slocum, who was present, undertook to separate them, and in his attempt to do so, he and Jones fell upon the floor; that Slocum placed his knee on Jones' breast and one hand on his head holding him down; that at this juncture appellant came from behind the counter, pointed the pistol at Jones' head and fired; that the bullet entered the top of the head and ranged down and toward the back of the head and lodged at the base of the brain; that as a result of the wound Jones died.

Appellant took the witness stand and testified that he was employed as a bartender at the beer tavern on the night in question; that the deceased and Ruley became involved in a personal combat; that he took a pistol from a shelf under the counter and went to where the two men were engaged in a fight with a view and purpose of quelling the disturbance; that he struck the deceased on the head with the pistol and knocked him down; that he then went back behind the counter and placed the pistol where he had obtained it; that some one remarked that Jones was shot, to which he (appellant) replied that there wasn't anyone shot; that he did not know the pistol was discharged; that if it was, it was accidental; that he did not intend to shoot anyone.

We have made this brief summary of the evidence to demonstrate the fact that the issue thus raised was whether the shooting was a deliberate and voluntary act or was an accident; and this issue the jury, who are the exclusive judges of the facts proven, the credibility of the witnesses and the weight to be given to their testimony, decided adversely to his contention and is final.

Appellant addressed one general exception to the court's main charge in which he claims that the court did not sufficiently present his defensive theory and the affirmative side of the case; and in connection therewith requested two special charges which the court declined to give. The first of these charges is to the effect that if the jury believed from the evidence that appellant went to the aid of and to defend a third party against an attack by the deceased and while so engaged the deceased was killed, then they should acquit the appellant. There is not any evidence from any source that the appellant acted in defense of a third party against an attack by the deceased. Hence no instruction on the subject was required.

Appellant's second requested charge is to the effect that if the jury believed from the evidence that appellant, for the purpose of quieting the deceased and to eject him from the premises and in his endeavor to do so, he struck the deceased with a pistol which caused it to be discharged, then they should acquit him. This was nothing more or less than an instruction to the effect...

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8 cases
  • Graham v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 25, 1972
    ...homicide.' Shelton v. State, Tex.Cr.App., 367 S.W.2d 867; Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123. See also Simmons v. State,145 Tex.Cr.R. 619, 170 S.W.2d 742. The appellant complains that the jury argument of the State was improper. Nine arguments of the State are grouped toget......
  • Stiles v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 26, 1975
    ...unnecessary to give the charge on negligent homicide because the charge submitted on accident was sufficient are Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943); Taylor v. State, 145 Tex.Cr.R. 158, 166 S.W.2d 713 (1942); Combs v. State, 52 Tex.Cr.R. 613, 108 S.W. 649 (1908); Alle......
  • Palafox v. State
    • United States
    • Texas Court of Criminal Appeals
    • July 19, 1972
    ...on negligent homicide. See, Beasley v. State, 171 Tex.Cr.R. 115, 346 S.W.2d 123 (1961), which cited with approval Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943). Further, in 4 Branch's Ann.P.C.2d ed. § 2181, p. 522, it is written: 'If the jury are instructed that if the killing ......
  • Banks v. State
    • United States
    • Texas Court of Appeals
    • November 12, 1981
    ...625, 224 S.W. 772, 775 (1920). A trial court is not required to instruct upon an issue not raised by the evidence. Simmons v. State, 145 Tex.Cr.R. 619, 170 S.W.2d 742 (1943). Because this ground of error can be overruled on the basis of appellant's invited error, however, we need not decide......
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