Appellant was convicted for the murder of Turner Gamble and his punishment assessed at confinement in the penitentiary for ninety-nine years. *Page 30
Appellant lived on Fairmount Street in the city of Dallas. His brother, Walter Reeves, lived on the same street near appellant. Diagonally across the street lived Bessie Brown, her husband Will Brown, and her brother Dick Gamble. The deceased, Turner Gamble, did not live with them but on the afternoon of the homicide was visiting at their house. We conclude from the testimony that appellant had no acquaintance whatever with deceased. The relations between the two Reeves boys, the Browns and Dick Gamble appeared to have been friendly up to a few days prior to the killing. We gather from the record that about this time there was some talk in the neighborhood that appellant was manufacturing and selling intoxicating liquor at his house, and the officers made some investigation. Appellant seems to have attributed the inquiry of the officers and the rumors to Dick Gamble. The evidence of the State is to the effect that on the afternoon the killing occurred appellant called Dick Gamble out of his sister's residence to talk with him; that they went about half a block away where they were seen to be engaged in conversation; that in a few minutes Dick Gamble returned to his sister's house in an excited condition, stating that appellant had made an assault upon him and had tried to strike him with a picket which he had pulled off the fence, and made inquiry if anyone in the house had a pistol, and was advised there was no pistol on the premises. Within fifteen or twenty minutes thereafter appellant and his brother, Walter Reeves, were seen crossing the street in a run going towards the Brown house. They each had pistols in their hands, and one witness states that she heard Walter Reeves, who was behind appellant, say to him, "Hide your pistol;" that appellant replied, "G_d damn them, I am going to kill every G_d damn one of them." They reached the Brown house and broke in the back door which was bolted. The occupants of the house testify that when they broke in the back door appellant said, "Come out of there you s__s of b____es, I am going to kill every G_d damn one of you;" that Will Brown, Bessie Brown, Dick Gamble, Turner Gamble and another negro by the name of Shelton, who was present at the time got hold of the Reeves boys and undertook to disarm them; that during the scuffle furniture was overturned, dishes broken and considerable noise and confusion occurred; that finally appellant broke loose from those who were trying to disarm him, with the exception of Turner Gamble who was an old negro seventy years of age; that he still had hold of appellant and appellant hold of him; that as appellant backed out of the door through which he had entered, that deceased was saying to him, "Don't do that, don't do that, what is the matter with you boys?"; that appellant pulled him out of the back door, saying "You old gray headed s__ of a b____, I will drag you out in the yard and kill you;" that they scuffled out into the yard against a box and that during the struggle the pistol in the *Page 31 hands of appellant was discharged several times; that Walter Reeves had gotten away from the parties who had been trying to disarm him, ran out of the front door and around to where appellant and Turner Gamble were, and that Walter Reeves also shot deceased. During the fight appellant received a pistol shot wound in the leg just above the knee. Deceased had five pistol wounds in various parts of his body and died immediately after walking back into the house.
Appellant's evidence and that of his witnesses was to the effect that on Friday night before the killing Sunday afternoon, Dick Gamble had been at appellant's house and had caused a disturbance in a quarrel with a negro named Clem; that appellant had requested him not to have any trouble there and had sent a negro woman to notify Bessie Brown, Dick's sister, that he was there and for her to come after him; that Will Brown had come and taken Dick Gamble away; that as they were leaving one of the two was heard to say, "G_d damn them, don't go over there to that nigger, Lonnie Reeves' house and start anything, We'll get the s__ of a b____ over at our house and we'll do business with him there;" that appellant and his brother, Walter Reeves, were passing the Brown house the Sunday afternoon when Bessie Brown called appellant to come into the house, that she wanted to talk to him, and that he and Walter Reeves upon that invitation went in, entering at the front door; that immediately upon getting into the house Dick Gamble said, "There is that s__ of a b____ now," and that immediately the parties in the house, including deceased, made an attack upon both appellant and his brother; that several shots were fired in the house, and that appellant scuffled out of the back door, deceased holding him at the time and striking him about the head with an iron bar or stick of wood; that as they were scuffling out in the yard some one from the inside of the house fired two shots at appellant, which shots apparently struck deceased; that he turned appellant loose, who immediately ran away. Will Brown and Dick Gamble each denied that either of them used any such language as was attributed to them at the time they left appellant's house on Friday night. Will Brown testifies that he went to appellant's house after Dick Gamble on such occasion at the request of his wife but that he knew of no trouble which had occurred there, and that there was no indication of any trouble at the time he reached appellant's place. Search was made by the officers and other parties after the homicide and no bullet marks of any kind were found any where on the inside of the house. The defense testimony was to the effect that neither appellant nor his brother had pistols at the time they went into the Brown house, but that the pistols were in the possession of the inmates thereof. The officers reached the scene of the homicide in a few minutes after it occurred and found no pistols in or about the house. *Page 32
We have thought it unnecessary to detail the evidence of the various witnesses separately but have undertaken to state substantially a summary of all of it both from the standpoint of the State and appellant.
No bills of exception appear in the record to the rejection or admission of any testimony. A number of special charges were requested two of which were given; those refused bear no notation that an exception was reserved to the failure to give them, and no bills of exception appear bringing forward such refusal for review. Where appropriate the principles were included in the general charge. The sole exception incorporates the objections filed to the court's charge. It will be observed from the fact developed upon the trial that many issues were raised and the court's charge seems to have covered all of them. The main charge and the two special charges given by request appear to have guarded appellant's rights upon every issue in the case. The charge embraced not only murder but the law of manslaughter and self-defense, covering in an admirable way the some what confused issues growing out of the evidence. We have been unable to discover any merit in the exceptions to the charge, although we have examined the same carefully in view of the heavy penalty inflicted.
The State's case, if its evidence is to be believed, reveals a condition of affairs in which appellant seems to have directed his malice not only at Dick Gamble but at all the inmates of the house; that he and his brother were actnig together, had armed themselves and had gone there with the express purpose of making a deadly assault upon the inmates, and that in carrying this purpose out Turner Gamble met his death. We have been unable to reach any other conclusion than that appellant received a fair trial, with a charge not subject to the criticisms and objections lodged against it, and that the penalty inflicted is a merited one.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. June 20, 1923.