Taylor v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation55 S.W. 961
Decision Date28 February 1900

Appeal from district court, Coleman county; J. O. Woodward, Judge.

Jeff Taylor was convicted of murder in the first degree, and appeals. Reversed.

T. R. Austin and Jenkins & McCartney, for appellant. Sims & Snodgrass and Robt. A. John, Asst. Atty. Gen., for the State.


Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life, and he prosecutes this appeal.

The homicide occurred on June 9, 1898, in an attempt by appellant and three others to rob a train on the Gulf, Colorado & Santa Fé Railway. During the attempt to rob said train one of the parties engaged in it, to wit, Newman, took deceased, Johnson, who was a fireman on the train, from the engine to the front of the express car; the others of the party remaining near the engine. While Newman and deceased, Johnson, were parleying at the express car, one Buchanan, a passenger on the train, came out on the rear of the passenger coach and began firing. Appellant and those with him returned the fire, and in the progress thereof Johnson, the fireman, was shot and killed. Appellant and those with him immediately fled, and were captured about three days thereafter in Sutton county, at the ranch of Bill Taylor, one of the alleged train robbers. A number of questions are raised in the record, but we will only discuss such as we deem important, and are likely to occur again.

Appellant filed a plea in bar of the state's action, setting up that he had once been in jeopardy; alleging, in proper form, that he had been convicted of an assault with intent to rob one White, the express messenger, and that said assault was one and the same transaction in which the alleged murder occurred. Proof was admitted on this plea, but the court, in his charge, refused to submit the plea to the jury; thus, in effect, striking out said plea, and holding that the same did not constitute a former jeopardy. In order to present this question, we will state substantially the case as made on behalf of appellant: The state proved a conspiracy on the part of appellant, his brother Bill Taylor, one Keaton, and Newman, to rob the express on the Santa Fé Railway train in Coleman county, at a certain point, known as "Coleman Junction." They came together from Sutton county to the place, armed and prepared to execute the purpose of their conspiracy. They met the train, which was a passenger train as well as an express train, at the point agreed upon, in the nighttime, on the 9th of June, 1898. When they stopped the train they fired off their pistols, and immediately boarded the engine, which had run out on the switch preparatory to changing its course, and took in custody Lee Johnson, fireman, and James Stanton, the engineer. They took them out of the cab onto the ground. Two of the conspirators held the engineer in charge near the engine; and one of them, to wit, Newman, took Lee Johnson in charge, and carried him in front of the express car, and at once undertook to have the express messenger, White, open the express car. They used both threats and persuasion to procure the messenger to open the door. Some suggestion being made that the injector of the engine required attention, Newman conveyed Johnson back to the engine. He there rearranged the injector, and Newman and Johnson then went back to the express car. About this time one Buchanan, who was a passenger and also appears to have been in the employ of the railroad company as claim agent, came out on the rear platform of the passenger coach, and down on the steps, and immediately began firing in the direction of the robbers. They returned the fire. Johnson was shot in the side; the ball going clear through his body, entering one side and coming out at the other. The testimony was contradictory as to which side the ball entered; the state contending that it entered from the left (the side next to the robbers), passing out through his right side, while appellant contended that it entered his right, which was next to Buchanan, coming out at his left side. Two of the robbers were wounded in the fusilade. Immediately after this they fled, and three of them, including appellant, were captured some three days later in Sutton county. This was substantially the state's case against appellant. On his plea of former conviction for an assault with intent to rob, appellant introduced the judgment of former conviction for said assault, which was predicated on his plea of guilty, and the testimony of himself. This testimony was reproduced by the district attorney, T. T. Crosson, and is substantially as follows: That he (appellant) was there and attempted to rob the express car, and that the murder for which he was then being tried was a part of the same transaction. It was in the same crowd, on the same night and place, and under the same circumstances. Upon cross-examination he stated that on the former trial there was no proof of the shooting and death of Lee Johnson; that the attempt to rob was in pursuance of an agreement between appellant and his brother Bill Taylor, Bud Newman, and Pearce Keaton, entered into some time before; that they came to Coleman Junction for that purpose, and attempted to rob the train; that the first thing they did was to shoot off their guns, to frighten the parties on the train; that they did this to alarm the expressman, and enable them to reach the express, and that they intended to take the express company's property in the car; that they tried to get the messenger to open the door, but he would not do it; that they did not get a cent.

On this state of case, appellant insists that his plea of former jeopardy should have been submitted to the jury; and he cites us to a number of cases which he insists support his contention,—among others, to Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943, and Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120. In the first case mentioned, appellant was convicted of an assault with intent to murder, and was afterwards put on trial for robbery. In the last case, appellant was first convicted of robbery, and was subsequently put on trial for an assault with intent to murder. In both cases the former conviction and the case being tried were shown to be one and the same transaction. In Herera's Case the court cite the principles of law covering such matters from Mr. Bishop, indorsing his views. Applying the above test to the case in hand, the court said: "To sustain the robbery, it was necessary to prove the assault. Indeed, the robbery could not be sustained without proof of the same assault for which appellant had previously been convicted on a charge of assault with intent to murder. The offenses are in part, at least, of a like character. They relate to one transaction; and, while the charge of robbery contains more of criminality than the other, yet upon the assaulting part of the charge, and on which the robbery could only be sustained (though embraced in it), the assault with intent to murder is predicated. The offenses, though bearing different names, would appear, by the rule laid down within our constitutional guaranty, the same." Further, from State v. Smith, 43 Vt. 324, we quote as follows: "While there is a considerable conflict in the authorities upon this subject, we think the rule is well established that when one offense is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other." The principles announced in these cases are correct, and applicable to the question then before the court, but does it follow that they are applicable to the facts involved in this case? In Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491, where the plea interposed was one of former acquittal, and which, as to the facts, has no particular application to this case, we laid down the following rule adduced from the authorities: "Where the two indictments are of such a character that they are susceptible of being shown to be the same transaction, the plea of former jeopardy is a question for the jury, and not for the court. If, however, the offenses, as charged in the two indictments, show upon their face that they are legally distinct, and incapable of identification by averments, they are separate offenses, and are not susceptible of being established as the same offense." And in such case it is competent for the judge to strike out the plea of former conviction. And in Epps v. State, 38 Tex. Cr. R. 284, 42 S. W. 552, the same rule was adhered to. And see Augustine v. State (Tex. Cr. App.) 52 S. W. 77. In the first-named case, appellant was being tried on a charge of robbing one E. A. Peifer. He pleaded in bar that he had previously been acquitted in the same transaction for robbing one J. W. Powers. The court struck out the plea of former acquittal, holding that the indictments were for distinct offenses; that, although they may have occurred in the same transaction, yet an acquittal for an assault and robbery of Powers was not a bar for the assault and robbery of Peifer,—they being two distinct persons,—although the two assaults may have been made in the same transaction. In Augustine's Case, supra, appellant was put on trial for the murder of Philip Brassell. He set up in bar of the prosecution that he had formerly been tried and acquitted of the murder of one George Brassell, and he alleged they were one and the same transaction. The proof showed that the murder of both said parties occurred in one and the same transaction, yet that they were two distinct acts; that is, each was killed by a distinct shot. It was there held that the former acquittal was not a bar. We there said "that the contention of appellant might be urged with some force if the killing of both parties...

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  • Com. ex rel. Smith v. Myers
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    ...flight from the scene of the crime. See, e.g., Keaton v. State, 41 Tex.Cr.R. 621, 57 S.W. 1125 (1900); Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961 (1900); and Wilson v. State, 188 Ark. 864, 68 S.W.2d 100 (1934). These cases were not based on the felony-murder rule and imputed malice, but......
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