Trammell v. State

Citation167 S.W.2d 171
Decision Date21 October 1942
Docket NumberNo. 22150.,22150.
PartiesTRAMMELL v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from Criminal District Court, Nueces County; Geo. C. Westervelt, Judge.

Philip Trammell was convicted of murder, and he appeals.

Reversed and remanded.

Dave Watson, of San Antonio, and Purl & Purl, of Corpus Christi, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Murder is the offense; the punishment, ninety-nine years in the state penitentiary.

That portion of the vast King Ranch situated in Nueces County is bounded on the south by the waters of the Laguna Madre, an inlet of the Gulf of Mexico. The other boundary lines, and especially that to the north, are marked by a substantial fence.

The submerged lands of the Laguna Madre are owned by the State of Texas, and, at the time hereinafter mentioned, and long prior thereto, were under lease to an oil company for development of oil and gas. To effectuate this development, it was necessary to travel over and across that portion of the King Ranch mentioned. The oil company had contracted with a construction company to do the necessary hauling of materials and supplies to the drilling sites. The construction company arranged with the King Ranch for the right-of-way and passage over their properties. One of the elements of this agreement was that a gate would be placed in the north fence, to be kept locked, and a gatekeeper at all times stationed thereat to permit entry and passage of only those entitled thereto. For the use of such gatekeeper, a small three-room house was constructed near the gate. The deceased, J. M. (Scotty) Jetton, was employed by the construction company as such gatekeeper, and had been so employed for about eighteen months prior to his death; he occupied and lived alone in the gatekeeper's house.

The appellant was an employee of the King Ranch. His duties, primarily, were to trap predatory animals, ride fence, and, in general, to look after the interests of the ranch. He was also a state game warden, charged with enforcing the game laws. That portion of the ranch mentioned was a state game preserve. He lived alone in a camp located on the ranch and about two miles from the gate and gatehouse mentioned.

So far as this record is concerned, the appellant and deceased were good friends. Appellant was a regular and frequent visitor at the gatehouse, often playing dominoes and checkers with the deceased. This was the relationship existing between the parties on February 28, 1941 — the day of the homicide. The evidence shows that, about 10:00 A. M. that day, appellant arrived at the gatehouse, where he spent the day. Several workmen of the oil company were engaged that day in repairing a bridge near the gatehouse. All these, together with the wives of some of the workmen, had lunch at the gatehouse. Witnesses testified that, during this time, the appellant and deceased were friendly and congenial one with the other. The witnesses departed about 5:30 P. M., leaving appellant and deceased together at the gatehouse. Soon thereafter, appellant and deceased, in appellant's car, drove to a small cafe about three-quarters of a mile away, where they drank several bottles of beer. They remained there about two hours, at the expiration of which they left and returned to the gatehouse.

Up to this point, the facts are not in dispute. As to what happened when appellant and deceased returned to the gatehouse is the disputed issue.

The State's theory, based upon the physical facts and circumstances, augmented by portions of appellant's confession, was that, after the parties arrived at the gatehouse, the deceased went into the house and appellant pretended to leave, but in fact laid in wait, and thereafter, while deceased was in the house, fired two shots, through a door thereof, from a .22 caliber rifle, which struck deceased; and that, after being so struck, the deceased came out of the house and fired upon appellant, with a shotgun, numerous shots from which took effect on appellant's body. About 8:00 A. M. the next day, employees of the oil company found deceased in the gatehouse, lying upon a cot, in a pool of blood, and in a dying condition. Among other things found was a .303 caliber rifle, lying in the yard, the butt of which was broken off. Deceased was rushed to a hospital, but was practically dead upon arrival. An autopsy showed that death was caused solely from two bullet wounds inflicted with a .22 rifle, which, the undisputed evidence showed, were fired from such a rifle that not only belonged to appellant but was in his possession and in his automobile at the time of the shooting.

Appellant's version of the matter, as shown primarily by his testimony, was that, when he and deceased returned from the cafe to the gatehouse, deceased got out of the car, when appellant suggested that he wanted to drive down to the shore of the Laguna Madre to investigate a report that a boat had been seen on or near the shore; that, before leaving, deceased invited him to return and to have supper with him, saying he would prepare same while appellant was away, which invitation appellant accepted; that appellant later returned to the gatehouse and stopped his car nearby, and in a place where he customarily parked it; that he got out of the car and, while standing nearby, answering a call of nature, deceased, while standing near the corner of the house, suddenly and without warning fired upon him with a shotgun, the charge therefrom striking him in the chest; that the impact therefrom knocked him down; that he arose and went to his car, turned on a spotlight which was on the car, and with which he was able to see the deceased, standing in the back yard, with a shotgun in his hand; that he turned the spotlight off and shouted that he had been shot; that he then reached into his car and took therefrom a .303 lever action rifle, and, as he did so, deceased again fired the shotgun, the charge from which struck the stock of the rifle, causing it to discharge; that he reloaded the .303 rifle and fired in the direction from which the shots had been fired at him; that he immediately got into his car and drove in search of medical treatment for himself; that he drove to the home of the witness Pearse, about four miles away, when he secured Pearse to drive him to a Corpus Christi hospital for treatment of his injuries.

There were, in the appellant's car, at the time of the shooting, the .22 rifle, a pistol, and the .303 rifle. Appellant vigorously asserted that he never at any time either fired, or took from his car, the .22 rifle, and said that the only shots fired or attempted to be fired by him were from the .303 rifle.

Pearse testified, in behalf of the State, that, about 9:30 P. M. on the date of the alleged homicide, appellant came to his house and asked him to take him to a hospital; that appellant told him he had been shot, saying, in this connection, "He got me but I got him."; that he drove appellant, in appellant's car, to a hospital in Corpus Christi; that appellant did not, at any time, tell him how the shooting occurred, when or where it happened, or who had shot him, but "told me just to keep it to myself"; that they arrived at the hospital within about fifteen minutes, whereupon appellant told the nurse that "it is accidental, an accident," and told her the name of the doctor he wished to treat him; and that, during all of this time, appellant was bleeding, suffering, and in pain. After delivering appellant to the hospital, Pearse returned to his home, in appellant's car, in which were the guns, that is, the .22 rifle, and the pistol. He said he then went back to bed without reporting the incident to anyone.

The following afternoon, peace officers, after talking with Pearse, went to his (Pearse's) home and there found the car, and, in Pearse's home, the .22 rifle, which Mrs. Pearse delivered to them. Mrs. Pearse did not testify as a witness in the case.

Dr. Koepsel, the physician who attended appellant at the hospital, testifying as a witness for the appellant, upon direct examination, described appellant's injury as being a shotgun wound on the right side of the chest, inflicted with bird shot, none of which shot, however, had penetrated the chest cavity or lung. He said that, at that time, appellant was in a state of shock, had lost considerable blood, and was suffering much pain.

This constitutes a sufficient statement of the facts for a consideration of the questions presented for review.

It is insisted that the facts are insufficient to support the conviction. With this contention we are not in accord. Appellant having admitted his presence at the time and place of the shooting, together with the ownership and possession, at the time, of the gun with which the deceased was killed, and that he did fire a gun on that occasion, taken in connection with the physical facts, we conclude that this was sufficient to authorize the jury's conclusion of guilt. While it is true that, by his own admission, Pearse was in possession of the rifle from the time he left the hospital until the next day, and, during that time, was also in possession of appellant's automobile, with both time and opportunity available to him to have committed the offense himself, before the body of deceased was found, yet the absence of any suggestion in the testimony that he did so, or that he had a motive for so doing, supported by his positive declaration that, upon arriving home after his return from the hospital, he went to bed and did not know, until the next day, who was killed, is sufficient to disprove any hypothesis of the guilt of another that might be suggested by reason of his possession of the automobile and rifle.

The facts are sufficient to support the jury's conclusion of guilt.

Appellant offered to prove, by Dr. Koepsel, that, at the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT