Taylor v. State

• Decision Date: 28 October 1936
• Docket Number: No. 18470.,18470.
• Citation: 99 S.W.2d 609
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

99 S.W.2d 609

TAYLOR v. STATE.

No. 18470.

Court of Criminal Appeals of Texas.

October 28, 1936.

Rehearing Denied November 25, 1936.

Commissioners' Decision.

Appeal from District Court, Smith County; Walter G. Russell, Judge.

B. C. Taylor was convicted of murder with malice aforethought, and he appeals.

Affirmed.

See, also, 79 S.W.(2d) 1104.

Pace & Goens and Butler, Price & Neill, all of Tyler, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of murder with malice aforethought, and his punishment was assessed at confinement in the State Penitentiary for a term of ten years.

The testimony adduced by the state, in substance, is as follows: Allen Massey, a son of W. E. Massey, was employed by the deceased as a clerk at a gasoline station. Complaints had been made to the deceased about the conduct of young Massey towards ladies who came to the station to make purchases. On the afternoon of July 4th, while the appellant was at the home of W. E. Massey, deceased drove up to the yard gate and called Allen to his car and proceeded to lecture him concerning his conduct toward ladies. Appellant and Mrs. Massey, who overheard deceased talking to the boy, went to the yard gate and appellant told deceased that he had better talk to the boy's father instead of the boy. The deceased told appellant that he did not appreciate his act in "butting" into his business. This led to some uncomplimentary remarks being passed between appellant and deceased. When deceased left he made the remark that he would be back. Appellant, who had his car parked in the yard of W. E. Massey, went by his car in going back to the house and took therefrom a pistol which he put in his pocket. Soon after deceased had left, Mr. Massey returned to his home and in about fifteen minutes later deceased returned and again stopped his car at the yard gate and called to Mr. Massey. Appellant, who at the time was sitting on the front porch of the Massey home, started into the direction of where deceased and Mr. Massey were talking and when he got within about ten or fifteen feet, he drew his pistol and began shooting at the deceased, who was sitting in his car with one hand on the steering wheel and the other on the back of the car seat. Appellant's plea was self-defense, and in support thereof he testified that as he started to go from the porch to his car he saw that deceased made some movement with his hand down in the car, which caused him to believe that deceased was going to pull a gun, and kill or inflict serious bodily injury upon him; that to prevent him from doing so, he hurriedly drew his pistol and fired five times in rapid succession. No weapon of any kind was found on the body of the deceased or in his car.

Appellant urged ten objections to the court's charge and requested eighteen special instructions to the jury, three of which the court gave. To discuss each of the objections and the requested special charges would unnecessarily extend this opinion. We deem it sufficient to say that we have carefully examined the court's main charge with the requested charges that were given and reached the conclusion that the same distinctly and affirmatively applied the law to every phase of the case and adequately protected appellant's legal rights. Appellant was not entitled to a charge on the law of aggravated assault. Neither was he entitled to a charge on temporary insanity, as such issues were not raised by the testimony. The court did not err in declining to submit appellant's requested charges.

Bills of exception 10 and 11 reflect the following occurrence: E. H. Lindstaedter and W. H. Birdwell were each drawn as veniremen in this case and each of them had been drawn as a venireman at a former term of this court in this case and had been peremptorily challenged by the appellant, and when each of the said veniremen appeared for examination on voir dire the appellant moved the court to stand each of them aside, inasmuch as each of them had been challenged by him at a former term of said court, but the court overruled the appellant's motion and required him to exercise a peremptory challenge on each of said jurors. The court qualified said bills of exception and in his qualification of said bills of exception states that after the jury panel had been completed the defendant had only exercised twelve of his fifteen peremptory challenges. Under said state of facts, no reversible error is shown. See Wilson v. State, 3 Tex.App. 63; Nalley v. State, 28 Tex.App. 387, 13 S.W. 670; Easterwood v. State, 34 Tex.Cr.R. 400, 31 S.W. 294. However, we do not wish to be understood as holding that the mere fact that they had theretofore been peremptorily challenged by appellant at his former trial that it would be a cause for challenge at his subsequent trial.

Bill of exception No. 12...