Walker v. State

• Decision Date: 20 June 1891
• Citation: 16 S.W. 548
• Parties: WALKER v. STATE.
• Court: Texas Court of Appeals

16 S.W. 548

WALKER v. STATE.

Court of Appeals of Texas.

June 20, 1891.

Appeal from district court, Bell county.

Montieth & Furman, for appellant. R. H. Harrison, for the State.

WHITE, P. J.

The indictment in this case contains two counts. Each count alleges that the murder of John Mallory was committed by James B. Shearrar and this appellant, S. C. Walker. The only difference in the counts is that the first alleges that the murder was committed by shooting him with a pistol, and the second count by shooting him with a gun. The offense is alleged to have been perpetrated on the 23d day of December, 1890. When the case was called for trial, at the March term of the district court, the defendants severed, and the defendant S. C. Walker alone was put on trial, and found guilty of murder in the second degree, and his punishment assessed at 10 years' confinement in the penitentiary. The facts necessary to an understanding of the law of this case are brief. From the evidence it appears that Walker was the proprietor of a saloon in the town of Temple. Shearrar was an employe or partner in the business. About 10 o'clock upon the night of the homicide Shearrar became very much intoxicated and boisterous at the saloon, so much so that Walker, fearing he would get into trouble, determined to take him home and put him to bed. They started up the street with that view. They reached a point on their route, where they had to cross Tenth street on a narrow plank crossing, leading from one sidewalk to the other, and only one person could go at a time. At this crossing another party was with them, and, in going across, the other man, named Heard, went first, and next to him was Walker, this defendant, and then came Shearrar, the drunken man Walker was taking home. About the time these parties started across the narrow plank walk the deceased, and a young man by the name of Cummings, who was with him, also started to cross the said street on said plank walk behind the aforesaid parties. Mallory, the deceased, was immediately behind Shearrar, the drunken man, and Cummings behind him. When they had reached near the middle of the street, Mallory attempted to pass by Shearrar, or slipped and fell against him. As he did so, Shearrar instantly turned round, muttered something, drew his pistol, and fired the fatal shot which caused Mallory's death. The appellant, Walker, whom we have before seen was just in front of Shearrar, hearing the muttered words and the pistol shot, turned around immediately, and, according to the testimony of the state's witnesses, struck Mallory a blow in the face with his fist, knocking him down. Walker, who testified in the case himself, swears that he did not strike Mallory at all, but that he struck some other party, who rushed up to him just after the shot was fired. Mallory, after having been shot, ran across the street into a saloon, where he fell. This defendant carried Shearrar on home, and, after putting him to bed, came back down the street, and, ascertaining that Mallory had been shot, went over to see him. In his interview with Mallory, Mallory said: "Sam Walker, you know who shot me. Your one-armed bar-keeper shot me, and you helped him do it." This Walker, the defendant, denied, saying, "I never did anything to you, John; "to which deceased did not reply. This is the statement of what occurred between the two parties, defendant and deceased, as made by Pat Mallory, a brother of the deceased. Dr. Hawkes, also a state's witness, says: "I heard Sam Walker say to John Mallory, as he lay on the floor of the Big Indian Saloon, `John, I heard that you claimed to have been shot in my saloon.' John replied, `Oh, Sam Walker, you know where I was shot. You were in the crowd, or you helped to kill me.'" As stated above, the defendant Walker, in his testimony, denies positively that he ever struck the deceased with his fist after he was shot by Shearrar. All of the state's witnesses, who testify that he did strike the deceased, testify that he did so after the deceased had already received the fatal shot at the hands of Shearrar. We will treat the case as though the evidence of the state is true, and that the defendant did strike the deceased after the deceased had been shot by Shearrar under the circumstances detailed. As seen by the allegations in the indictment, the defendant is charged with being a principal offender in the commission of the murder; that is, it is alleged that he committed it himself...