Appellant was convicted of the unlawful killing of Charlie Goodson, and sentenced to be imprisoned in the state penitentiary for life.
The facts adduced by the State show that appellant was a prison guard, and at the time of the killing he was hunting for an escaped convict. Appellant, together with another guard, had spent the better portion of the day traveling from point to point, endeavoring to find this escaped convict. They had consumed together more than a quart of whisky, contrary to the rules of the prison board, and gave evidence of intoxication to some degree. The appellant and his comrade had been present in the deceased's barbershop during the afternoon, and appellant told of his having captured another escaped convict, and related the circumstances relative thereto to one Eric Isgate. In such conversation he told that when he first accosted such convict he did not know who he was, but said that if such person had attempted flight he would have shot him. Then turning to Isgate he said: "You would have done the same thing, wouldn't you?" to which the witness Isgate answered "No, I don't think I would."
Sometime thereafter the two guards, desiring more whisky, went to the house of one Jug Weaver for the purpose of purchasing whisky and drove around to the rear of said Weaver's house. Just prior to such time, however, the witness Isgate and deceased Charlie Goodson had closed up the Goodson barber shop, and Mr. Isgate was taking Mr. Goodson home in his car. Mr. Goodson was suffering with a cold and requested Isgate to drive by this same Jug Weaver's house for a few moments. They had arrived at this house and Mr. Goodson had gone into Weaver's home at the time the two convict guards drove up. Isgate, while sitting in his car, was approached by the appellant who jerked the car door open, threw his gun on witness and said "Get out, you convict-loving son-of-a-bitch; I am going to kill you." Witness got out with both of his hands up and walked backward from the appellant, and appellant told him to get on in the house, punching him with his gun. About that time the deceased Charlie Goodson came from around the house, and witness heard him say "Don't do that; don't do that," at which time the pistol fired one shot which took the life of Mr. Goodson. It also appears that Mr. Goodson had nothing in his hands and had no weapon on his body at the time he was killed.
Appellant's only defense was that he knew nothing about what happened he was so drunk; that he did not remember any *Page 460 of the occurrences relative to the killing, and had no idea of killing anyone; that he did not know Mr. Goodson.
Appellant's first bill of exceptions complains of the court allowing the State to prove by the witness Isgate a statement relative to the capture of a convict on the day before the killing in which the witness stated that appellant said if the person captured the day before had run he would have shot him. It was necessary that the State find some motive, if possible, for this wanton killing, and it seems to have probably been based upon the fact that the witness Isgate had angered the appellant in Goodson's barbershop by making the statement that he would not have killed the convict who was captured had this convict tried to escape from him.
Following up the question objected to in bill No. 1, the court also permitted the witness Isgate to state, as shown in bill of exceptions No. 2, that when witness said he would not have shot the convict had he tried to escape, the defendant said "Ah, Hell I would." In all probability the motive for this killing, as shown by the statement made by appellant at the scene of the killing, was based upon the conversation in which Mr. Isgate said that he would not have killed the escaping convict. The appellant's mind was doubtless so enraged that when he saw Isgate at Jug Weaver's home he called him "a convict-loving son-of-a-bitch," and threatened his life, and doubtless might have intended to kill Isgate at the time he killed Charlie Goodson as they were both at the same house and on the same mission and he may have been confused as to their identity. These bills are overruled.
Bill of exceptions No. 3, in our judgment, reflects no error, no answer having been elicited from the witness.
Bill of exceptions No. 6 is in question and answer form, and we find no certificate of the trial judge that it was necessary for such to be thus presented. We therefore can not consider the same.
Bill of exceptions No. 7 has been considered by us, and we can see no error reflected therein. It complains of the fact that prior to the time of the signing of the criminal minutes of the court the district clerk, under the direction of the court, entered the name of the defendant in cause No. 6414, which is the number of the instant cause in the lower court. The court merely made the record speak the truth, and surely has control of his minutes up to the time same were signed and the term of court adjourns. *Page 461
It is also complained by appellant that the witness Marshall Bynum was not a qualified juror in that he was not a householder in the county nor a freeholder in the State. We have carefully gone over the testimony relative to this matter, and, in our judgment, the juror was the head of a household, consisting of himself, his mother and a younger brother, and was a qualified juror under the law.
Appellant also filed a motion for a change of venue in this cause, alleging therein that "there is a dangerous combination existing by influential persons by reason whereof he can not expect a fair trial in Cherokee County," and that a jury of unbiased and unprejudiced men to try said cause could not be had in such county.
The court heard testimony relative to the matter, and witnesses testified both pro and con at such time.
It seems that the trial court was not in accord with the allegations in the motion for change of venue, and we see no reason to disturb its findings therein. Unfortunately for the defendant, he was not well known in Cherokee County, and again unfortunately he seems to have killed a man who had friends in such county and who was rather prominently connected therein. In our opinion the record shows that there were enough qualified and unbiased jurors in this case presented to him to assure him a fair and impartial trial under the circumstances. We see no error reflected herein.
This was a killing based upon a drunken carousal, with neither justification nor excuse in taking the life of a man who was unarmed and making no attack of any kind upon the appellant. The only defense that appellant offered was intoxication at the time, his testimony showing that he remembered nothing of the transaction that took this man's life, and the court gave a comprehensive charge on temporary insanity produced by the voluntary recent use of intoxicating liquor, but limited same, as in law he was bound to do, to be considered by the jury only in mitigation of the penalty, if they so desired. We find the charge to be admirably drawn, and possibly more favorable to appellant than he was entitled to, and under the circumstances presented to us we find no error shown in this record.
This judgment is therefore affirmed.