Oliver v. State (96 Tex. Crim. 633, 1924)

LATTIMORE, Judge.

Appellant was convicted in the District Court of Hardin County of the offense of murder, and his punishment fixed at confinement in the penitentiary for life.

There seems no contention over the proposition that deceased was shot and killed by appellant about three or four o’clock at night in the town of Sour Lake in Hardin County, a pump shotgun being used by appellant. The record reflects that the issue was as to whether the killing was upon self-defense or with malice. Appellant contended that as he came down the street past a building in course of erection known at the Sharpstein building, he was fired upon by some one who was in the darkness of the entrance to that building and that he raised his shotgun and emptied all the shells in the magazine before he quit firing. The State’s case was that resulting from enmity based upon various causes appellant procured a shotgun and went to where deceased, a night-watchman in the discharge of his duties, was and that when deceased tried to escape1 into the partially finished building appellant emptied his gun into his back. Deceased was shot in two places in his back and from close range. Appellant stated that he was about eight or ten feet from the man at whom he shot. Deceased made a number of statements so closely connected with the shooting as to be res gestae in our opinion in which he stated that he was shot by appellant and that he was trying to escape and that his pistol was empty. We notice the contentions made by appellant on this appeal.

From the judgment we learn that the case went to trial on January 15, 1923. The State introduced six witnesses and rested its case. Appellant was his own first witness. He testified that about two or three o’clock on Christmas morning 1920 he was going along the street in Sour Lake and was fired at by a man whom he thought to be deceased and that with a shotgun had by him for the purpose of going duck hunting that morning, he returned the fire and that after his magazine was empty he ran to a nearby rooming house kept by Mrs. Ferris and engaged a room and there spent the rest of the night. His own home was about one hundred and fifty yards from the scene of the shooting. He said he awaked Mrs. Ferris and engaged a room from her. On cross-examination he was twice asked if he did not tell Mrs. Ferris that he had just gotten even with a man who had beat him up. It was in testimony that at a carnival a short time before that appellant had been severely beaten up and that he was not aware who his assailant was but thought it was deceased. Appellant denied having made the statement to Mrs. Ferris. In its rebuttal the State was allowed to introduce a subpoena issued on January 16, 1923, for Mrs. Ferris and served on the same day; also to put on the stand a brother of Mrs. Ferris and by him prove that she was sick and unable to come to court. By two bills of exception appellant objected to this procedure. In his charge the learned trial judge told the jury that they could not consider the evidence as to the subpoena and as to illness of Mrs. Ferris save for the limited purpose of affecting the diligence of the State in the matter of securing the testimony of the lady. An exception was reserved to this charge. Appellant’s motion for new trial is accompanied by the affidavit of Mrs. Ferris in which she states that at the time she rented a room to appellant he made no statement to her to the effect that he had gotten even with a man who had beat him up; also she says that she had never told anyone that he had made such statement.

We have thus the proposition that the State, apparently without sufficient foundation for belief that such was a fact, twice asked appellant while a witness if he had not made the statement indicated, to Mrs. Ferris. If he had in fact made same, proof of this before the jury would have most forcibly met