Wilson v. State

• Decision Date: 11 June 1913
• Citation: 158 S.W. 512
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

158 S.W. 512

WILSON v. STATE.

Court of Criminal Appeals of Texas.

June 11, 1913.

Appeal from District Court, Tarrant County; R. H. Buck, Judge.

M. G. Wilson was convicted of assault to murder, and he appeals. Affirmed.

Baskin, Dodge & Eastus, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

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

The testimony shows that Lincoln Pepper and his two cousins had gone from Alabama to Oklahoma, and from a point in that state bought a ticket for Dallas. En route to Dallas they stopped over in Ft. Worth and went into the bar of the Rosen Hotel. While in the saloon they and appellant, Lee Black and William Robinson, went into a back room and engaged in gambling. A short time before 12 o'clock they went to room No. 30 in the Rosen Hotel and gambled all night. There is virtually no conflict in the testimony up to this point, but from here on there is a sharp conflict. The state's witnesses say that about 7 o'clock in the morning one of the Pepper boys won a "pot" and said he was going to quit, when Robinson slipped his hand back in his pocket and took the money off the table and put it in his pocket, and had the other Pepper surrender what money he had in sight and ordered them out of the room. When they left they say they were followed by Robinson and appellant, and after going down the steps, just as they were going out the door some one fired, and Lincoln Pepper was shot in the back. The Peppers returned the fire. The proof beyond doubt shows that appellant was the person who shot Lincoln Pepper. Appellant's contention is that he, Black, and Robinson had won some money from the three Peppers; that Robinson started to leave, when the Peppers drew their pistols and forced them to surrender, not only the money they had won, but some of their own money; that the Peppers then lined appellant and Robinson up, and marched them out of the room, and down two flights of stairs, when they halted at the landing and told them to remain there until they left; that appellant made the remark he was going to have the Peppers arrested for taking his money, and started down the steps, when the Peppers opened fire on him, when he pulled his pistol and shot twice.

Thus it is seen the Peppers claimed they had been robbed by Robinson, Black, and appellant, and when they said they were going to have them arrested, they were fired on; Lincoln Pepper being wounded. On the other hand, appellant, Robinson, and Black claim they were robbed by the Peppers, marched down the stairway, and when Wilson (appellant) said he was going to have them arrested, he was fired at by the Peppers, merely returning their fire in self-protection. The court submitted this issue to the jury, and the only complaint of the charge in this or any other respect is that the court erred in his charge in instructing the jury that "if by force and violence" the property was taken from appellant and his friends by the Peppers, they would have the right, etc., to slay the assailants; the contention being that instead of using the words "force and violence" he should have used the words "by assault and putting in fear of their lives or bodily injury." On this point Lee Black testified: "The way the game came to break up, I was sitting over on one side of the table, and Mr. Robinson and one of these Pepper boys were sitting to my left, and Mr. Wilson and another one were sitting on the bed to my right, and we were playing along there, and finally Mr. Robinson got up and said that he was going downstairs to get a drink of water and a little something to eat, or something like that, and he asked the rest of us if we wanted anything to eat, and when he did that, he just taken what money he had, but he picked his money up, and this boy that was playing with him says, `No, you won't take none of my money.' He says, `You won't quit me at all.' He says, `You won't go out with none of my money,' and he jerked out his gun and he says, `You must give me all your money.' He says, `I am not going to lose no money.' He says, `I did not come up here to lose no money.' So, when he done that, this boy that was...