Tapley v. State, 26285
| Decision Date | 04 March 1953 |
| Docket Number | No. 26285,26285 |
| Parties | TAPLEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Schlesinger, Goodstein & Semaan, San Antonio, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
Appellant was charged with murder with malice, and on his trial he was awarded a penalty of 99 years in the state penitentiary.
The facts arose from the actions of people who were all drinking beer at the time. The deceased, his wife, and two friends, who had been working on the telephone system in the town of Pearsall, in the afternoon about 5 o'clock, entered a drive-in cafe owned by the appellant and ordered a bottle of beer apiece. Appellant was in the place at that time and was drinking with some of his friends. He had been drinking rather heavily throughout the day. Some little disagreement arose on account of the fact that the deceased had placed a nickel in one of the juke boxes which failed to play. Upon being notified of this condition the appellant directed a waitress to give the deceased a nickel and also give him a handful of nickels and eventually the juke box performed its function.
At that time the deceased, possibly in a jocular mood, ordered another bottle of beer and requested that he be allowed to open an account in such place. The waitress said he had no account there. Appellant refused the deceased's request and made the statement that 'if you get this little black-headed girl to come over here and talk to me, she can have anything in the house.' That little black-headed girl was the deceased's wife of four months.
Later on the appellant walked over to where the deceased and his crowd were sitting and told the deceased to 'shut up'. At that time the deceased turned around and said, 'I hope you are joking.' Appellant replied, 'No, you shut up.' He was standing close to the deceased. The deceased struck appellant and knocked him down. He was standing over the appellant, when he reached down and picked him up off the floor. They went into the ladies' rest room, which was nearby, and washed the blood off the appellant's face and nose which were bleeding as a result of the fight. At that time it seems that apologies passed between appellant and deceased; that they made friends and came back and deceased ordered a bottle of beer to be placed before the appellant.
After the episode had passed over, appellant kept saying, 'I am an old man' (he being about 44 years of age). 'You ought not to have struck me.' A young man was sitting by appellant. Appellant turned to him and said, This caused merriment and laughter among the persons present since the 'old man' to whom appellant spoke was only 27 years of age. This occurrence seems to have angered the appellant who ordered the crowd to leave at once, walked out of the place, got in his car and drove away. Appellant was followed for a distance by one of his friends who evidently was expecting trouble from appellant. The witness got to appellant's home just as he was leaving with a rifle in his car. He followed appellant but was detained somewhere and did not arrive at the scene of the killing until just before the firing of the shot. Appellant was sitting in his car with his rifle in his hand and ordered his friend not to touch or grab his rifle. After appellant left the drive-in, the deceased ordered his wife to go out and get in the car and wait for him as he saw appellant coming toward the door of the drive-in with the rifle in his hand. The deceased retired into the rest room and was concealed therein at the time the appellant came to the door of the drive-in, opened the door, raised his rifle and called to another party to hold the door open. Appellant then looked over the crowd assembled in the cafe and asked them if they wanted any of it. They all indicated that they did not, so appellant went out, got in his car and moved it to the side of the drive-in. Unfortunately, it was right close to the car of the deceased wherein his wife was sitting. About that time the deceased came out the back door of the ladies' rest room, which let him outside of the cafe. Located a short distance from the main building was a store-room where appellant kept his beer. Appellant saw the deceased running toward that store-room and fired a shot in his direction with his rifle. The bullet struck the ground just at the heels of the deceased, who then ran around the building and turned around, going toward the car in which appellant was sitting, as well as his own car in which his wife was sitting.
According to the appellant's story, he heard some noise around to his side but did not see the deceased until he was close to him. He then jerked up his rifle which was lying across his lap and fired one shot which hit the deceased in the neck from which he died instantly. The body of the deceased was lying about four feet from the appellant's car with his head a little further away when the officers arrived.
These are the facts as near as they can be summarized from about 600 pages of a statement of facts in question and answer form.
Appellant has many bills of exception, some 47 informal bills and four formal bills.
It is contended herein that the trial court was in error in charging on provoking the difficulty, which seems to be the most serious question with which we are confronted.
The court charged the jury relative to self-defense and in connection therewith instructed on provoking the difficulty.
In the case of Flewellen v. State, 83 Tex.Cr.R. 568, 204 S.W. 657, we held that where the accused cursed the deceased and pursued him that such conduct constituted a provocation of the difficulty.
Again, in the case of Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806, 809, the parties to the controversy had some previous trouble on that day, the deceased, his uncle and appellant being engaged therein; deceased and his uncle then drove away from the scene of the earlier trouble and came some distance into the town of Burnet. Appellant soon came into the town and parked his car behind that of the deceased. He got out of such car and called the uncle of the deceased to come and talk to him. Appellant reached into his car for a rifle and deceased warned his uncle not to go to talk to appellant because he had a rifle. The uncle hurriedly left there and soon heard a shot. Upon returning he saw the deceased lying dead with his rifle near him, he having been shot by the appellant. We quote from the opinion as follows:
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Whitehead v. State
...on the ground that it failed to require the jury to find the specific intent to kill. We quote from our opinion in Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583, as 'To say that even though an accused pointed a deadly weapon directly at the injured party and fired the same, but that in......
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Flanagan v. State
...each case must be viewed in its own setting. In that regard, compare the facts of this cause with those found in Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583 (1953). Cases which this Court has reversed, because the evidence was ruled insufficient to sustain the element of specific int......
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Juarez v. State
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Hall v. State, 39115
...defense be affirmatively submitted.' 228 S.W.2d 162, 163. See also, Fields v. State, 171 Tex.Cr.R. 636, 352 S.W.2d 729; Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583. In the case at bar, the only affirmative defense raised by the evidence was appellant's theory of self-defense, upon wh......
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Table of cases
...198 (Tex. Crim. App. 2000) Tanguma v. State 721 S.W.2d 408 (Tex. App.—Corpus Christi–Edinburg 1986, pet. ref’d) 3:1800 Tapley v. State 256 S.W.2d 583 (Tex. Crim. App. 1953) 3:1990 Tarlton v. State 93 S.W.3d 168 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) 14:620 Tate v. State 811 S.W.2......