Sorrell v. State

• Decision Date: 26 June 1914
• Docket Number: (No. 2828.)
• Citation: 169 S.W. 299
• Parties: SORRELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 299

169 S.W. 299

SORRELL v.STATE.

(No. 2828.)

Court of Criminal Appeals of Texas.

June 26, 1914.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Pearl Sorrell was convicted of murder, and he appeals.Reversed and remanded.

Geo. S. King, of Houston, for appellant.Norman & Shook, of Rusk, and C. E. Lane, Asst. Atty. Gen., for the State.

WILLIAMS, Special Judge.

Appellant was convicted in the district court of Cherokee county of the offense of murder, and the punishment assessed was a term of 11 years' imprisonment.Appellant was tried under this same indictment in January, 1912, and was convicted of murder in the second degree, and punishment assessed at 10 years' confinement, but that conviction was set aside in the lower court.

There was an ice-cream supper at G. P. Messer's residence in the northeastern portion of the county on the night of July 2, 1910.The appellant, the deceased, and quite a number of other neighbors, male and female, assembled there that night.It was on this occasion that the homicide out of which this conviction grew occurred.The deceased and appellant were each at that time approximately 23 or 24 years old.The deceased, under the evidence, was the larger man.Estimates giving him the advantage in weight varying from 20 to about 50 pounds, the appellant's weight being generally estimated from 125 to 135 pounds.The deceased some month, or possibly a little more, prior to the homicide had an altercation with two younger brothers of appellant.One of appellant's brothers had a cut on his head as if he had been struck with a stick.The deceased said this trouble was over "the fixing of a fence."It is not shown how, if at all, this former difficulty concerned appellant, further than his two younger brothers were involved in it.Nor is it shown that he had any connection with, or took any interest in, it, except that some time after the difficulty between the deceased and the younger Sorrell boys the appellant, in talking about the matter with the state's witness J. F. Martin, stated to him (Martin) that he(the appellant) was not going to raise any racket with him (deceased), and that he did not blame him as much as he did the other crowd or crew; "and then he told me that if they ever did have any trouble, or if I ever start, I am going to get the whole d____ business, and then they can do what they please with me."This was after the trouble between deceased and the younger Sorrell boys, which the evidence shows occurred some time in the spring of 1910 and prior to the homicide in July; it being no more definitely fixed.Deceased had made serious threats against appellant, which had been communicated to him prior to the homicide.Appellant had taken his pistol to a jeweler at Troupe to be repaired about a month before the homicide, and had gone to Troupe on the day of the homicide and gotten it back in good shape.On the night of the homicide the appellant and deceased reached Mr. Messer's residence about dark, the deceased arriving first.Quite a number of others also arrived about the same time and disported themselves about the premises.One at least of appellant's brothers also attended the gathering.The house fronted north.There was a front porch and a hall extending north and south between the rooms, and a rear addition with a porch fronting east.Shortly after arriving, appellant walked through this hall and approached deceased, who was seated, it seems, on the edge of the back porch or steps.The evidence is not entirely in accord as to just what language passed between them at this time, but we will not now go into the details of what was said there, or what ensued.It is sufficient for a general statement of the case to say that appellant invited the deceased to step aside with him on the plea that he wanted to have a conversation with him.Deceased at first demurred, but finally upon appellant's solicitation went; and all agree that they walked away together side by side and apparently upon friendly terms.They walked out through a side gate in the east line of the yard fence and to a stump some 18 or 20 feet from the gate.They had not been gone through the gate but a few minutes — some say about five — until three shots were heard, and the deceased came running back through the gate saying Pearl Sorrell had shot him.The three shots were in pretty close succession, but there was a greater time between the first and second than there was between the second and third.The injured party died about 3 o'clock that night.He was shot once just below the navel, and this bullet went entirely through him and his clothes.This wound caused his death.There was another flesh or skin wound on the front and side near the hip, but this did not enter the cavity and was not serious.There was a wound or cut on the top of his head and a little to the left, and both the scalp and hat showed he had received a blow there.His clothes were on fire in front of both body wounds.There is some divergence in the evidence as to the extent of the darkness, but all agree that it was dark.No one except the participants was present or saw the fatal difficulty or heard what was said, except one witness, who testified he saw the blaze of the last two shots, and saw the bulk of the form of deceased coming away from the flash while the said last two shots were being fired.As to what transpired there between appellant and deceased after they left the yard, we are confined for information to the dying declaration of deceased and the evidence of appellant — in connection with the physical facts in the case.

When deceased came back through the gate he stated to some one that he was killed, and asked them to get him to a bed to die on.This, we take it, is a sufficient general statement of the case for the present, and we will discuss other details in connection with the questions raised.

2.The new law abolishing the degrees of murder was in effect, at the time of the trial from which this appeal is had.As before stated, the appellant had been tried once before this under the old law and convicted of murder in the second degree.By various special pleas and motions, the appellant properly raised and presented the question that, having been convicted of murder in the second degree, and thereby acquitted of murder in the first degree, and second degree murder having been abolished by the statute, he cannot be tried for any higher offense than manslaughter.He presents his position on this subject from various angles, but all tending to the one position as above stated.His counsel, upon this question, has filed a very able, exhaustive, and persuasive separate brief.This same question, however, has recently been before this court in several cases.The court has taken occasion to consider and discuss the same fully, and have ruled adversely to appellant's contention on the point.We do not therefore now regard it as an open question in this state.Appellant's contention in this respect is overruled.Shaw v. State, 160 S. W. 104;Cook v. State, 160 S. W. 468;Hill v. State, 161 S. W. 120.

3.Appellant filed an application for a change of venue, alleging, in substance, that there existed so great a prejudice against him in Cherokee county that he could not expect a fair and impartial trial.His affidavit was properly supported by compurgators, but the state filed counter affidavits in statutory form, and the issue of fact was therefore raised as to the existence or nonexistence of prejudice to the extent alleged.

The homicide occurred in 1910, and this trial was had during the May term, 1913.There had been a former trial of this case, which resulted in a conviction of murder in the second degree and a penalty of ten years' confinement assessed.This was in January, 1912.It also appears that there had been a former application for change of venue.At the last prior term of the court before the instant trial the defendant was not present at a date when his case upon resetting was called for trial, and his bond was declared forfeited.There are some things in the record about which there is but little, if any, controversy.It seems at the former trial of the case the sheriff was called upon to attach and bring to court a witness whose wife was sick, and during the thus enforced absence of the husband from the home the wife died.In the ensuing election an opponent of the sheriff sought to make political capital of this unfortunate incident.He had printed and distributed generally over the county at least 3,000 circulars narrating the occurrence, thus bringing this case into public notice and under discussion in every precinct and neighborhood in the county.The evidence further shows that at the former trial of this case there was a large attendance composed of citizens from various parts of the county, who were present at court and heard the evidence and argument of counsel in the case and the verdict of guilty with the ten-year penalty.Upon another occasion, when appellant's bond was declared forfeited, it appears that there was some other case or cases set for trial, and there was an attendance upon court of a great number of citizens, witnesses, jurors, etc., from the body of the county.At this time the rumor became prevalent that appellant had intentionally forfeited his bond and had fled to the state of Louisiana as a fugitive from justice.It is a fair presumption and fully borne out by the record in this case that these citizens who attended court upon the occasions referred to returned to their respective homes in the remote precincts of the county and there very naturally disseminated the news occurring at the county seat.In this connection it is further shown that several newspapers of general circulation in the county published accounts of these various court proceedings had in this case.None of these publications was bitter or unfair, except possibly...