Campbell v. State

KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the State penitentiary for a term of ten years.

By bill of exception number one, appellant complains of the action of the trial court in declining to instruct the jury to return a verdict of not guilty on the grounds that the evidence was not sufficient to authorize and sustain his conviction.

The testimony adduced by the State, briefly stated, shows that appellant operated a still on the Hitson place, located north of the town of Cisco in Eastland County. The deceased knew of the still’s location and on the morning of April 2, 1936, he, accompanied by two friends, Quenville Ingram and Herman Notgrass, drove from Cisco to its location. They found it in operation but no one was present. A short distance away they located some hidden whisky, a part of which they drank. Then they returned to Cisco. The deceased told his companions that the still belonged to his brother but that appellant had stolen it. After dark the deceased and two friends went back to the still and moved it about a-mile from where it had been located to a ravine. In the meantime someone had removed the distributor cap to their car in which they were riding, and upon their return, they found that it would not start. The deceased went to town and brought back with him another cap. After repairing the car, deceased’s companions got into the car and started out of the premises with the deceased following in his own coupe. Just after the first car had gotten off the premises, lights from a parked car were flashed on them and some shots were fired. The men speeded up and a few minutes later heard another shot. After driving some distance, they noticed that the deceased was not following them and turned around and went back. They found the deceased’s car standing on the side of the road, lights burning and motor still running. The body of the deceased was lying on the ground nearby. They immediately hurried to town and reported the matter to the police who found deceased dead from a bullet wound in his chest.

Bert Bradley-testified that he went with the appellant and two other parties on the afternoon in question to ..the still to get some whisky, but found that it had been moved. They then returned to Cisco but later went back. Before going the second time, appellant and one of the other men armed themselves with shotguns. They also had a 38-calibre pistol in the glove compartment of the car. On their first trip to the still, they found a car parked on a hill nearby and appellant took something off it to prevent the parties from driving away. When they went back the second time it had gotten dark, and they parked their car on the opposite side of the road and waited for the parties to come out. They had not waited long before the first car came out of the pasture. Bradley fired the first shot at them with a shotgun and then appellant drove his car in front of the deceased’s car and walked back to talk to him. The witness did not see the shooting, but testified that he heard two shots fired. That just before these shots were fired, appellant and the deceased were standing on the right side of the car. The parties then drove back into town. On the same night, appellant, his wife and Bradley went to Big Spring, about 150 miles away, and from there to Midland; then they went back to Big Spring where appellant’s father-in-law met them and they returned to Cisco. The bullet taken from the deceased’s body by the undertaker was a 38-calibre bullet. It entered the body in the chest

Appellant did not testify or offer any affirmative defense. We deem the evidence sufficient to support the jury’s conclusion of appellant’s guilt.

By bill of exception number one, appellant complains of the action of the trial court in overruling his motion for a continuance based on the absence of one George Bryant, who was an employee of the alcoholic unit of the Treasury Department of the U. S. located at Fort Worth, by whom he stated that he expected to prove and would prove that Bryant made some investigation in connection with the offense charged. That he filed a charge against appellant in the United States District Court for the possession of a still and whisky. In construing the allegations in the application as to what appellant expected to prove by said witness, it is our conclusion that they amount to nothing more than that Bryant filed a complaint against him charging him with the operation of a still and the possession of whisky. Just how this testimony was material to any defense of the appellant is not made to appear from the record and we fail to see the materiality of the same. See Sec. 312 Branch’s Ann. P. C., pp. 184-185 and authorities cited. Moreover, the court in his order overruling the motion states that it was a second application. This being true, the matters as they are recited in the application rested within the sound discretion of the trial court.

Appellant, in due time, addressed a number of objections to the court’s charge. By his bill of exception number four, appellant specifically objects to the charge on the ground that the court declined to instruct the jury that if the defendant’s property were stolen by the deceased, or others acting with him, the defendant would have a right to approach him either armed or unarmed in seeking a return of said property. We do not think the evidence called for any süch instruction. The appellant did not claim self-defense; he did not know that the deceased had stolen his still or his liquor; he merely suspected it. The record is silent as to what appellant’s object was when he drove his car in front of the deceased’s and shot him. We fail to see under just what theory he was entitled to such an instruction. We have examined the other objections to the charge in the light of the criticisms addressed thereto and reached the conclusion that the charge is not subject to the objections.

All other matters complained of by appellant have been carefully examined by us and are deemed to be without merit.

No error of a reversible nature appearing in the record, the judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.