Singleton v. State

• Decision Date: 08 December 1909
• Citation: 124 S.W. 92
• Parties: SINGLETON v. STATE.
• Court: Texas Court of Criminal Appeals

124 S.W. 92

SINGLETON v. STATE.

Court of Criminal Appeals of Texas.

December 8, 1909.

Rehearing Denied January 12, 1910.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

D. P. Singleton was convicted of murder, and appeals. Affirmed.

W. E. Allen, W. F. Smith, and F. S. Eberhart, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The appeal in this case is prosecuted from a conviction in the district court of Palo Pinto county, wherein D. P. Singleton was found guilty of murder in the second degree and his punishment assessed at confinement in the penitentiary for a period of 10 years.

The killing occurred in a saloon in the little town of Lyra in Palo Pinto county on the night of the 1st of December, 1908. It seems that both parties were drinking somewhat and met by appointment, or otherwise, in the saloon on the night in question. They had some conversation with reference to some chickens and about visiting each other, in the course of which deceased said that the chickens that he wanted to show appellant did not belong to him, but that he owned an interest in them. Whereupon appellant replied, "By God, I invited you to come to my house, and I propose to give you some good music, and what I propose to show you belongs to me and no one else," and added, "I am no pauper, and I am well fixed." This witness also states: That at the time appellant told Taylor, deceased, he was no pauper, he seemed a little "rowled" up some way like he was not in a good humor. Just after this conversation appellant drew his pistol from his pocket and was in front of deceased, showing it to him. That deceased told him to put it up and went over and sat down on a bench by the wall. That appellant went over and got down in front of deceased, or knelt down in front of him, and soon thereafter the pistol was fired. Some of the witnesses say that at the time and before the fatal shot appellant had taken some of the cartridges out of his pistol, and raise the issue strongly that the shooting was accidental. At the time he was shot, deceased said, "Pat, you have got me." Almost immediately appellant left the room, but soon returned and sat down on the bench close to where deceased's body lay and remarked: "Ain't that hell? Somebody has killed as good a man as there is in this camp," and asked, "Who could it be?" That the witness said he did not know. That appellant then said, "Some one had it in for me and shot at me and hit Taylor." Appellant also stated he was not armed and could be searched. The evidence further showed that appellant hid his pistol a short distance from the saloon some 80 yards south of the saloon in the side of a dirt dump running out from a coal shaft; that at this time it was entirely empty of cartridges with the exception of one empty shell; and that this showed to have been recently fired. The statement of appellant voluntarily made before the grand jury was offered in evidence in which he accounted for his having a pistol by reason of having a difficulty with one Halifax, with whom he was expecting trouble, and explained that he had carried this pistol every time he went down town at night since 1889; that at the time of the killing he had taken out, as he believed, the cartridges in his pistol, and said to deceased he wanted to show him what a fine gun he had; that he then began to snap the pistol, and at the third snap it fired and shot Taylor. Others of the witnesses say that appellant and Taylor seemed to be entirely friendly with each other all the time. This is perhaps a sufficient statement of the evidence.

1. When the case was called for trial, appellant filed his application for continuance based on the absence and for the want of the testimony of three witnesses, Mrs. W. W. Ledbetter, Richard Moreland, and one Brown, who was alleged to reside in Palo Pinto county, Tex., but to be at the time of the trial at Capitan, N. M. It becomes unnecessary to state either the diligence, or the testimony of Mrs. Ledbetter, for the reason that, in opposing appellant's motion for a new trial, an affidavit of this witness was filed in which she distinctly denied the truth of the testimony which it was assumed that she would give, and in terms denied that she would testify to the facts or any of them stated in the application. It is also unnecessary, we think, to discuss the application at length in so far as it relates to the absence of Richard Moreland, for the reason that all the testimony of all the witnesses renders it certain that he was not seen at the time of the homicide and would not have given the testimony expected, or, if he had done so, that the same would have been manifestly untrue. As to the witness Brown a somewhat more serious difficulty presents itself. No diligence was exercised to secure his attendance. It is averred that appellant did not know until after the case was called for trial that Brown was a material witness in his behalf, and that none of his counsel knew this fact. It is averred: That Brown is now at Capitan, N. M., at which place his deposition could be taken; that he was present in the saloon where Taylor was killed, standing within 10 or 12 feet from the parties and with his face towards them so that he could see and know what each of them was doing; that this witness had been in the saloon for an hour or more next preceding the killing and heard the conversation between them, and if present would testify that appellant was not in any way mad or angry at deceased; that all their conversations were in a friendly way; that appellant did not in a threatening manner flourish his pistol before deceased before he was shot; that a few minutes before the accident which resulted in the death of said Taylor the defendant was kneeling in front of the deceased, and while so kneeling took from his pocket his pistol, and in plain view of said witness broke same for the purpose of removing the cartridges therefrom, and as witness believed at the time, and as this defendant believed as shown by his acts, removed therefrom all the cartridges with which same was loaded, placed said cartridges in his pocket, and was showing the deceased how said pistol would work, and was snapping same at the time of the accident; and that the killing was accidental and without any intent on his part to kill Taylor. It is stated that the materiality of the testimony of this witness would appear, in this: That the state has alleged, and will attempt to prove, that the defendant shot and murdered the deceased with malice aforethought; that a short time before said killing of the deceased defendant had made threats against the said Taylor, and had flourished a pistol near the head of deceased, as previously stated herein; that the shot which resulted in the death of said Taylor was fired by this defendant deliberately and with the intention on his part to kill the said Taylor. It is further stated in the application that if this cause is continued until the...