Vines v. State

• Decision Date: 12 June 1912
• Parties: VINES v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W. 727

VINES v. STATE.

Court of Criminal Appeals of Texas.

June 12, 1912.

Rehearing Denied June 28, 1912.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Sellers Vines was convicted of murder, and he appeals. Affirmed.

Fannin & Underwood, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant, under a proper indictment, was adjudged guilty of murder in the first degree, and his punishment assessed at death.

The evidence introduced in behalf of the state would show that two car inspectors of the Houston & Texal Central Railway, on the night of the 27th of September last, while engaged in their work found appellant in a car, and reported that fact to deceased, an officer of Grayson county, and who was also employed by the railroad as night watchman in the yards at Sherman to take care of irregularities, attempts to break box cars, and arrest all trespassers. A witness says deceased was cautioned to look out for men breaking in cars and men sleeping in cars, as the road had suffered from several thefts and burglaries. When the car inspectors reported to Mr. Mounger that appellant was in the car, he started in that direction to investigate, and, when near this car, he asked one of the inspectors "which car was he in." The inspectors say that deceased had his pistol in one hand, and a little flash light in the other. About the time deceased was near or at the door of the car in which appellant had been seen, a pistol was fired; the flash coming out of the door of the car. The bullet struck the deceased in the back on the left side and ranged across and to the front and came out near the right nipple. He sank to the ground and died in a few minutes. The next day appellant was arrested about 4½ miles south of Sherman by the sheriff. Mr. McAfee says he and others were searching for him when they saw a negro jump and run, and he and others took after him. The negro ran about 100 yards and laid down on the embankment. When he got up, the sheriff says he "threw down on him," and said, "Give up that gun," when appellant replied, "Oh, I haven't got any." The sheriff returned to the spot where he saw appellant get up, and found a Colt's 45 six-shooter in the grass. There was one loaded and one empty shell in the pistol. The pistol bore evidence of having been recently fired. None of the witnesses testifying to these facts had ever seen appellant before the night of the killing, and as circumstances in the case it was proven that deceased was shot with a pistol of 45 caliber; that this pistol, found where appellant was seen to get up, had been taken by appellant away from an officer at Wills Point a short time prior to this occasion. The pistol was positively identified by D. L. Riley, and appellant was positively identified as the man who took it from Mr. Orsborne by a number of witnesses. As furnishing a motive for the crime, it was shown that appellant was charged with robbery in Dallas county, and had broken jail and escaped about two weeks prior to this killing, and was at the time a refugee from justice. When he broke jail he was first seen at Wills Point. Upon being approached by an officer, before a word was spoken, he grabbed the officer, and it was at this place he took the pistol away from the officer. After getting possession of the pistol, he told Mr. Orsborne "to get," and that officer hastily did so. Mr. Wilson, a deputy sheriff of Van Zandt county, seeing the difficulty between Mr. Orsborne and appellant, fired at appellant, who returned the shot; several shots being exchanged, and appellant escaping. Appellant then went to Bowie county, where an officer again attempted to arrest him and failed, and when next seen was the night he killed Officer Fred Mounger.

After all these circumstances had been proven, appellant took the stand in his own behalf, admitted he did the killing, saying he was on his way to Dallas to surrender; that he had been shot by the officer at Wills Point and in Bowie county, when the officers attempted to arrest him, and on the night of this killing, after the car inspector passed, he dozed off, when a light flashed in his face, and a man had a pistol drawn on him; that nothing was said by either party, and he grabbed his pistol and fired, firing out of the door to scare the man away, so he could escape.

Appellant objected to the evidence, showing that he was indicted for robbery in Dallas county, had escaped, and to Sheriff Brandenburg identifying him as the man so indicted and who had escaped. It was shown by the evidence that appellant had never seen deceased until the time he killed him. So if this evidence was not admissible, it would be a killing without motive or incentive, and the jury would hardly have inflicted the death penalty. Mr. Wharton, in his work on Evidence, says: Evidence of every material fact or circumstance that will throw light on a homicide, and every motive that might have influenced the mind of the accused, is admissible, and all facts and circumstances that tend to show motive on the part of the accused are relevant. And in Dill v. State, 1 Tex. App. 287, this court held: Where it is shown that a crime has been committed and the circumstances point to the accused, facts tending to show a motive, though remote, are admissible in evidence, and in that case an indictment charging the defendant with a different crime was held admissible, and the further fact that deceased was a witness for the state in that case. Other cases so holding: Jones v. State, 4 Tex. App. 442; Rucker v. State, 7 Tex. App. 560; McKinney v. State, 8 Tex. App. 639; Powell v. State, 13 Tex. App. 252; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; Crass v. State, 31 Tex. Cr. R. 314, 20 S. W. 579; and a long list of decisions cited in these cases. Thus, in this case it was permissible to show that appellant was charged with crime in Dallas county, had escaped, resisted arrest in Van Zandt and Bowie counties, and the other circumstances introduced, for they all shed light on the actions of appellant at the time of this killing, and tending to show...