Duke v. State (36 S.W.2d 732, 1931)

CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for t§n years.

Appellant and Sam Stapleton were jointly indicted for the murder of W. E. Holmes. A severance being had, Stapleton was first placed on trial, and convicted. On appeal to this court the judgment of conviction was affirmed. See Stapleton v. State, 113 Tex. Cr. R. 543, 22 S.W.(2d) 939.

Several hours before the homicide, appellant, Sam Stapleton, and the sons of Staple-ton had had some trouble with deceased. According to the testimony of state’s witnesses, deceased and some of his friends were in a negro house. Appellant and his companions entered the house, approached deceased and his friends, and cursed them. Deceased struck appellant and Sam, Stapleton with his fist, whereupon appellant and his companions left the house. Several hours later deceased and his associates started back to the penitentiary farm where they were employed as guards. They met appellant, Sam Stapleton, and Stapleton’s sons in the road. Witnesses for the state testified that Sam Stapleton shot deceased with a shotgun. According to the state’s version, deceased,was unarmed. The state’s testimony was further to the effect that appellant said to deceased at the time of the difficulty in the negro house: “I will see you again.” Further, according to the version of the state, when the parties met on the road several hours after the difficulty in the negro house, deceased had gotten out of the car in which he was riding and walked up the road. State’s witness Woodley, who was in the car with- deceased, testified, in substance, that appellant walked up to the car and asked him: “Ain’t you the s-s of b-s that whipped us up over there?” The witness having replied in the negative, appellant said: “Yes, I believe you are the G- d-d s- of a b-that whipped up on us out there.” The witness again replied 'in the negative, and appellant said, according to the testimony of the witness: “Where is the other two fellows that were in there with you?” The witness said: “They ain’t nobody in here with me.” Appellant replied: “You are a G- d- liar. There was while ag