Crossett v. State (168 S.W. 548, 1914)

PRENDERGAST, P. J.

Appellant was in-dieted for the murder of Warren Bullock on January 20, 1914. He was convicted, and his punishment assessed at 30 years in the penitentiary.

On the night of January 20,1914, there was a dance at the country home of Mr. Spiller. Appellant and deceased both attended it. Bullock was the floor master, or manager of the dance, and it was his business to collect from each of the young men who danced $1 to pay for the music, which was the amount charged each one. After the dance had progressed some two hours or more, about 11 o’clock, Bullock approached appellant and asked him for his dollar. Appellant refused to pay it, claiming that he had danced only a short time. Several witnesses saw and heard what then occurred between the parties. This was in one of the rooms of the house. They both then walked from that room into the other room of the house where they had a short conversation about the same matter. Their conversation was not heard by any other witness. Appellant said while they were in the room he told Bullock he supposed he had danced only about 30 minutes, and offered to pay Bullock a half dollar. Bullock refused this, saying to him: “If you are so damn short you won’t pay a dollar, I won’t take any.” Appellant then invited Bullock out of the house to settle the matter. They then at once went out of the house, appellant in the lead. It whs a very dark night, and very dark in the yard out of the house. As Bullock was going out he halted and delivered to some friend' the money he had collected and other things out of his pocket, then walked out. Several witnesses testified, in effect, that not one word was spoken by either party when Bullock walked out. Several of them, all disinterested, swore that the moment Bullock stepped out on the ground appellant struck him a blow which felled him to his knees. Appellant said as Bullock reached the door going out he (Bullock) could not see him (appellant), and said, “Where are you?” He replied, “Right here.” and that Bullock came right out towards him saying, “You bet I will come, all right.” He admitted that he at once struck Bullock and knocked him to his knees. Appellant was a larger and heavier man than Bullock, and admitted that a few years before he had taken boxing lessons. All the witnesses say that when Bullock was so knocked to his knees he at once recovered himself, made at appellant, and he and appellant began fighting. There were two automobiles in front of Spiller’s house close to the gallery off of which both parties had stepped when the fight. commenced. In the fight at first, after clenching, in some way they fell against, or one was pushed against, one of the fenders of one of the automobiles. The parties present could not tell which was against the automobile, but two of them pulled the parties, still clenched, away from the automobile, as one of them expresses it, so they could have a fair fight. Appellant threw Bullock down, and was on top of him beating him and gouging his eyes. Each was fighting the other as much as he could. Soon Bullock called to the others to pull appellant off of him, some saying that he merely said, “Pull him off, boys;” others that he said, “Pull the son of a bitch off, boys.” At any rate, two of the bystanders took hold of and pulled appellant off of Bullock, pushed him back several feet, had hold of and restrained him. In the meantime two others had pulled Bullock up and held and were restraining him. The bystanders were then attempting to prevent any further fighting. After appellant was pulled off of Bullock, Bullock kicked him, perhaps in the face, and kicked at him. While he was still down, appellant also kicked Bullock in the face and kicked at him. After each was pulled up and each held by others to prevent any further fighting, Bullock tried to get to appellant, and said repeatedly: “I will kill the son of a bitch, if it’s the last thing I do, or the last act of my life.” One of appellant’s witnesses said he said “damned bastard.” When Bullock was saying this he was surging and maneuvering with his arms up, trying to get loose from those who held him. Wade Bartlett was one of the persons who at this time had hold of Bullock, and, with another one of the witnesses, keeping him from appellant. Appellant then said, as Wade Bartlett testified:

“ ‘Wade, he said he was going to kill me,’ and when Crossett said that I turned and looked at him and saw him with his gun. I turned Bullock loose and went to Crossett and told Crossett not to shoot; that he (Bullock) didn’t have anything. * * * Crossett was advancing toward Bullock at that time. * * * He was coming right towards Bullock and right towards me. X met him; went close-enough to put my hand on him; did put my hand on him, on his right arm; and then he swung around this way. The gun fired about that time.

* * * About the time the shot was fired X had hold of Crossett’s arm; the first I noticed of Bullock after the first shot was fired, I know he was going up on the porch, running across the porch.”

This witness further testified that when he turned Bullock loose and went to appellant that Bullock began backing off from appellant.

L. D. Tankersley testified that he had hold of Bullock when appellant shot at him the first time, and that at that time Wade Bartlett had hold of appellant, and Tankersley testified Bartlett said to appellant:

“ ‘Don’t shoot, he hasn’t got anything.’ After the first shot Bullock started to run, seemed like, and grabbed hold of me; I don’t know just exactly where he grabbed me; he held my arms, I think. I think I was just about between him and Crossett at the time he took hold of me; I then tried to jerk loose, and fell hack against the ear in the scuffle. Yes; I did get loose from him. After we fell back against the ear and he got loose from me he jumped up on the gallery; that was before the second shot. * * * I regained my balance and stayed where I was; after the second shot I saw Crossett as he ran around the house; Bullock went around the house ahead of him. * * * I heard Crossett say something immediately before the firing of the first shot; he told them to look out; he was going to shoot. As near as I can remember, he told the boys to get out of the way; he was going to shoot. He did shoot; I can’t tell exactly; it loked like the bullet came in the direction of me; I saw the fire from the gun; I saw the gun in Crossett’s hand. * * * I heard Crossett say something else with reference to shooting Bullock. He said, ‘You said you would kill me; now, I will get my gun and kill you.’ I don’t remember whether he made that statement before telling the others to get out of the way, or said it afterwards. It was before the first shot. * * * After the first shot fired I turned him loose and stepped back toward the car, and he grabbed me; I stepped to the right, and he grabbed me. I fell over against the automobile; I tried to jerk loose, and in the scuffle fell against the car. * * * When I got up Bullock jumped, up on the gallery; it seemed as if he was going to go in one of the doors, and then he turned.”

Mr. J. G. Crowley, one of appellant’s witnesses, testified that just before appellant shot the first shot at Bullock appellant said, “You heard what he said, boys; look out, I am going to shoot;” and that just before this he heard Bartlett tell appellant not to shoot; that he heard him say, “Don’t shoot him, don’t shoot him.”

Mr. J. B. Spiller, another one of appellant’s witnesses, testified that he helped pull appellant off of Bullock, and that he backed him back some four to six feet, and the others took Bullock off some eight or ten feet. Further:

“Before he drew his pistol he said, T