Thompson v. State

• Decision Date: 23 June 1915
• Docket Number: (No. 3613.)<SMALL><SUP>†</SUP></SMALL&gt
• Citation: 178 S.W. 1192
• Parties: THOMPSON v. STATE.
• Court: Texas Court of Criminal Appeals

178 S.W. 1192

THOMPSON v. STATE.

(No. 3613.)^†

Court of Criminal Appeals of Texas.

June 23, 1915.

Dissenting Opinion, October 9, 1915.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Silas Thompson was convicted, and appeals. Affirmed.

Moore & Short, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years' confinement in the state penitentiary.

Charley Smith is the alleged assaulted party. The evidence shows Smith's and appellant's farms joined; that the Branchville schoolhouse, located on a small plot of ground, was moved, when appellant and Smith both claimed the ground on which the school had stood. Words ensued and a bad state of feeling engendered. It is shown that in a telephone conversation appellant said to Smith: "G__d d__n you! Stay off that land." Smith replied, "I expect if you will come over there this evening you will find me plowing," when appellant respondent, "If you do, G__d d__n you, I will make it hot for you." Appellant admits using this language, but says he intended to make it hot for him in law. Several days after this, while Smith and Searcy Glass were plowing in this plat of ground, and Floyd Blanchard was cutting bushes, Mrs. Thompson (appellant's wife) on her way to the Flat saw them at work and went in at the gate, and asked them what they were doing, to which Smith replied they were breaking the land. Mrs. Thompson ordered them to get off of the land, Smith replying he was not going to get off. Mrs. Thompson then left, going in the direction of her home, saying, as she did so, "You will go when I get back." Smith testifies that, in about 10 minutes after Mrs. Thompson left, he saw appellant on the railroad dump going in the direction of Grover Beck's. He is very positive that it was appellant he saw, saying "The man I saw was Silas Thompson"; that he had on a pair of bright yellow pants; that, pretty soon after he saw Thompson on the railroad dump, Mrs. Thompson returned and came from towards her home. He says she again demanded that he get off the ground, and testifies:

"I do not know that I could repeat the old lady's language, but it was just a demand to get off the land. The old lady had her right hand under her apron against her body that way, and she spoke to me in such emphatic terms, and I asked her if she had a pistol under her apron, and she said she did, and I said, `I suppose you aim to use it?' and she said she did, and I says, `Give me time to unhitch my team from the plow,' and told her I did not want my team to run away and get cut up in the wire, and I told her if I was as low down as they thought I was it would not be against the law to kill me, and we talked on, and she asked me if I was willing to arbitrate it, and I told her I was, and that I was not only willing to arbitrate it, but, if she would go out of the community where it would not involve our neighbors, that I would let her choose the arbitrators, and she selected Juber Brown and Mr. Edwards and Bailey, and I told her I would abide by what they said, and I asked her would Silas abide by it, and she said she did not know, she thought he would, but he would be there in a few minutes, and said for me not to say anything that would fret him, and I told her it was a business proposition with me, and that I would not say anything to aggravate him; and I asked her where he was, and she said he was over in the field, and said that she told him to come over here, that I was over here, and said that he started, but she did not know where he went, and I said, `He went down to Beck's to get his gun,' and she did not make any reply, and about that time the first shot was fired, and I turned to look in the direction of where the shot seemed to have come from right across the dump with the lay of the land. The ground I was on was nearly level with just a little slope to the south. The mountain was south and southeast of where I was, just across the railroad dump. The point of that mountain was covered with bushes. It was 60 or 70 yards from where I was standing to those bushes on the point of the mountain. Mrs. Thompson was 10 or 12 feet from me when the first shot was fired, and when the first shot was fired she walked about that much further, and says: `You had better get out of here now; you are going to get hurt, and you are going to get hurt bad.' And I told her that I would not go off in the condition I was in, that I might be carried off, but I would not go in the condition I was in; and we began to talk about the arbitration again, and then there was a second shot fired. It was from three to five minutes from the time the first shot was fired until the second one was fired. That second shot hit me. It hit me in the right shoulder or arm, and my team got to cutting up, and I told the boys not to let them get in the wire, and the Blanchard boy jumped and grabbed the team, and I told Glass to unhitch them from the plow, and by that time I had my shirt unbuttoned, and Glass asked me if I was hurt much, and I told him I thought my shoulder was broken, and when they got the teams unhitched they came to where I was, and I told them that I thought it was only a flesh wound, and Searcy asked me if we had better not cross the creek, and I told him, yes that I had better go home, that I was losing a good deal of blood, and we started and got across the creek north of where I was standing and a third shot was fired. There was some brush on that creek, but not so very much at that point. Any one shooting at me from the point of the mountain could have seen me where I was when the third shot was fired. After the third shot, I went home and did not hear anything more. I did not hear the bullet from the third shot."

Searcy Glass testifies, in substance, to the same state of facts, only he was not able to identify the man on the railroad dump.

Floyd Blanchard also testifies to the same state of facts, adding that when she left the first time he heard her say she was going to get Silas. He says he did not recognize the man on the railroad dump, but he had on a pair of bright yellow pants. He further testifies that, after the second shot was fired, he saw a man jump off the point of the mountain into the cut. The man he saw jump into the cut had on yellow pants; that this was the point from which the shots came, and after the shooting he went up there with the sheriff, and they found a man's track and a woman's track going in the direction of the Thompson home.

It can hardly be gainsaid that Mr. Thompson was the man these people saw on the railroad dump, for in his testimony he admits that, after his wife left home, he decided to go to Grover Beck's and borrow his 30-30 rifle to kill some rabbits that were destroying his potato patch; that he traveled the road these state witnesses say; and also admits that he had on yellow pants, and was on the railroad dump.

Grover Beck testifies that appellant came to his house and borrowed his 30-30 rifle between 12 and 1 o'clock.

Of course, if we take the defendant's testimony and the testimony of his witnesses alone, the question of whether or not appellant and his wife were acting together would not be raised, for Mrs. Thompson says on this trial she did not see her husband from the time she left until after the shooting. Appellant also so testifies, and his daughter-in-law Mrs. Myrtle Thompson's testimony would strongly support that theory. But we must take the testimony as a whole, and, if it raises the issue that they were acting together, then the acts and declarations of each are admissible during the time of the preparation for the act and while it is being consummated. In Phillips v. State, 6 Tex. App. 380, the following quotation from Wharton on Evidence, § 1205, is quoted approvingly:

"The least degree of concert or collusion between the parties to an illegal transaction makes the act of one the act of all."

Judge White, in the well-considered case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, discusses this question thoroughly, and holds that the old rule that a conspiracy must first be established ipso facto, before proof of acts and declarations of the individuals engaged therein are admissible against each other, is now exploded. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually existed, it will be considered immaterial whether the conspiracy was established before or after the introduction of such acts or declarations. And in that case it is correctly held that an acting together may be shown by circumstances, for it is rarely ever possible to obtain positive testimony of a conspiracy. And while a conspiracy cannot be shown alone by the declarations of an alleged co-conspirator, yet such declarations may be taken into consideration in connection with other facts and circumstances in the case, and, if the evidence as a whole justifies and supports a finding that the parties were acting together in the commission of the offense, the testimony is admissible.

Now, what facts and circumstances does the state offer in evidence to show that appellant and his wife were acting together in making the assault on Smith. It introduces in evidence a telephonic conversation between appellant and Smith, in which appellant said, "G__d d__n you! I will make it hot for you." A few days subsequent to this, while Smith is on the land, Mrs. Thompson appears on the scene and orders Smith off the land, and, when he refuses to go, she turns and leaves, saying as she did so:

"You will go when I get back. That she would go and tell Silas (appellant) and he would put Smith off."

In about 10 minutes after Mrs. Thompson leaves, appellant is seen on the railroad dump, going in the direction of Grover Beck's. He...