Tubb v. State

• Decision Date: 12 December 1908
• Parties: TUBB v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 858

TUBB v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1908.

Rehearing Denied March 20, 1909.

Appeal from District Court, Anderson County; B. H. Gardner, Judge.

Sam Tubb was convicted of murder in the first degree, and he appeals. Affirmed.

Miller & Royall and Campbell, Sewell & Strickland, for appellant. F. J. McCord, Asst. Atty. Gen., T. J. Harris, Dist. Atty., H. I. Myers, and N. B. Morris, for the State.

RAMSEY, J.

Appellant was indicted in the district court of Anderson county on a charge of murder, and on trial was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

That he shot and killed Dave Pierce on the 30th day of January, 1907, is not denied, nor is there any pretense of justification for his having so done. The facts are: That he lived, and had lived for many years, near the town of Frankston, in Anderson county. That some time in the fall of 1907 he had bought from the Campbell Machinery Company a gasoline engine and wood-sawing outfit, under an agreement that he should pay $125 in cash on the machinery being set up in a good working order, and the remainder of the purchase price in consignments of cordwood. About the 26th or 27th of January, D. W. Huff went to the town of Frankston to see appellant in regard to a settlement of the outfit so purchased. Mr. Huff called on appellant and, as he states, showed him that the machinery was in perfect working order, and that appellant seemed well pleased with it. That he then asked him about the payment of $125. That appellant did not seem to want to make any settlement, and he asked him if he was going to fulfill his contract, to which appellant replied, "Not now, not yet," but that he would see him up at the hotel, and that he did come there to see him. That he went up to his room in the hotel, and that Huff fixed up the note for him to sign, and appellant said he would have to see his son before he could do anything and would see him in the morning, and that if he did not see him in town he could come out to the mill where the machinery was. That he went out next morning and found him nailing up the doors and windows of the house containing the machinery, when he asked appellant if he did not think he ought to make a settlement of some kind, or turn the machinery over to him, to which appellant replied that he could not do it, as he had sold it. That in accordance with instructions received from the house, with the necessary accompanying papers, he called on Mr. Pierce and gave him the sequestration writ and bond of indemnity, and that he started with Pierce to the house where the machinery was, but as it was raining they went to appellant's residence. That his son invited them in and asked them to have a seat by the fire. That they made some inquiry of the son as to where appellant was, and were advised that he was down in the field getting up some cattle. That they remained there some 15 or 20 minutes, about the expiration of which time, Mr. Huff says, he heard a noise which he took to be a dog running off the steps, and that just after this he heard what he thought was a key grating in the lock of a door through which they had just entered. That very soon after this appellant appeared in the doorway leading into the dining room. That he heard a quick tread at the door, and looking up saw appellant come in with a shotgun in his hands. That appellant said, "What are you sons-a-bitches doing in my house?" That the minute appellant came in he had a bead drawn on Pierce, and just the minute he made the above remark he fired. That after some other efforts to escape, witness jumped on a bed, and closing his eyes and ducking his head he rushed through a window and dropped to the ground and ran. That appellant pursued him with his gun and called on him to halt, which he finally did. That appellant came up where he was, and he told him that he had done nothing, and that that was his way of earning a living, and for him to remember that he (witness) had a wife at home. That appellant then said to him, "Well, damn you, then come back here, and I will not hurt you." That he marched witness in front of him, and when they got to the yard gate near the barn he told his son to open the gate and let him (witness) in, when he started to go, and appellant said to him, "Now you go," and he started to go, and appellant then said to him, "Hold on, come back here and pay me for that window you broke." Witness asked him how much he wanted, and he said it was $2.00. That he took it out of his pocket and went to hand it to appellant, when he said, "Don't do that, lay it down on that stump." That he laid it down on the stump, and appellant said, "Now you go." That he continued pointing the gun at him as long as he was in sight, and that as soon as he got out of sight he immediately ran with all possible speed. Huff says that at the time Pierce was shot he had his hands folded in his lap and was reading a magazine, that he (Huff) did not have any weapon on his person, and that Pierce had the sequestration papers with him which he had given him. There was no evidence to disprove any part of the testimony of Huff in respect to the circumstances of the shooting. There was no plea or claim of justification, nor was there any evidence of ill will or malice on the part of appellant towards deceased.

The defense in the case was insanity, and to prove this much testimony was introduced. While it is claimed by the state that this testimony was largely that of kinspeople of appellant, and others open to attack, there was a great amount of testimony of numerous witnesses, which, as we view it, raised a serious question as to the insanity of appellant. This is rendered to our minds more cogent in view of the peculiar circumstances surrounding the homicide. That appellant was a singular and an eccentric man no one can read this record and not believe. That he was something more than this was stated by many of the witnesses and is strongly urged by appellant's counsel. Among other witnesses produced by appellant was Judge A. B. Watkins, who stated: That he knew appellant well; had represented him in court a number of times. That among other things that impressed him as strange and unusual was the fact of appellant consulting him about the propriety of committing suicide in order to collect an insurance policy. That, as witness believed and had observed, appellant's controlling impulse had always been to swindle some one, anybody with whom he came in contact, at any time. That he seemed to want to get hold of anything, even if it was useless. That he did not discriminate between his friends and those to whom he was under no obligation. That he had said a hundred times in the last few years that appellant was a monomaniac on that one subject. That it was out of proportion to any other idea he had. That it was uppermost in his mind. That he believed appellant was sane on any other subject, except that one of swindling people out of their property. That he believed him to be a monomaniac. That he believed he had reached that point that he had come to feel that it was all right for him to beat anybody out of anything, and that he had a right to beat them out of it. That he believed that appellant's idea was that to interfere with him in that line was just like interfering with him in anything else that he had a right to do, as much as the plowing of corn, or the interference with any other property right of his. He further states that appellant appeared to him the whole time—that is, since 1884—to be almost as bad as a maniac upon that subject, and that he really looked upon him as an unfortunate person, a moral degenerate.

Many singular and peculiar acts of appellant were proven on the trial. It seems that on a couple of occasions he came to the house of one W. B. Beacham and got breakfast and woke up the family and announced that breakfast was ready, and that this was his conduct the first time he had ever been at his house; that in conversation he would change the subject a half dozen times in a short while, and that he could never understand what he wanted. It is shown by another witness, who had known appellant some 30 or 40 years: That in going in company and to church appellant would attire himself in a long linen duster and an old hat; that in working in the fields he had known him to sew up his trousers so tight than he could not get them off and would have to sleep in them; that he always seemed to have a desire to go up; that he wanted to go up to a higher pitch, and if his plans failed it seems that he just floundered, and would throw himself away, which caused the witness to believe that he was off and that something was wrong with him; that this peculiar disposition was noticeable even when he was a boy; and that his conduct led him to believe that his mind was impaired even then.

Another witness, who had known him for many years, testified that it was noticeable that in the midst of a conversation he would stop and stare out of the window, drop his head for a few minutes, and presently start off on a new subject.

Mrs. Cook testified to seeing him burn brush at night, and that when his wife was a corpse, and they were sitting up with her, she noticed that appellant would take his baby and walk around the room real fast, singing to the baby, and finally laid down on the floor and went to sleep, that the baby was not fretting, and that she did not commonly see people acting that way on such occasions.

W. A. Lamb testified to an incident in connection with a visit appellant paid him last winter, when he noticed that appellant had a string tied around his body, and that he asked him why he wore it there, and appellant replied that it was as warm as an overcoat, and that he believed that his mind was unbalanced.

Jim Owens testified to a number of unusual incidents, and, among other...