Murder With Malice. Appeal from district court of Rusk County; penalty, confinement in the penitentiary for ten years. Hon. J. C. Gladney, Judge Presiding.
Gordon R. Wellborn, Rex Houston, James N. Phenix, Henderson, for appellant.
Warren McDonald, Tyler, amicus curiae.
Leon Douglas, State's Attorney, Austin, for the state.
[ 165 Tex. Crim. Page 630]
The conviction is for murder with malice; the punishment, 10 years' confinement in the penitentiary.
The evidence is undisputed that the appellant killed the deceased by shooting him with a gun. The deceased was the appellant's father, at whose home the homicide occurred.
According to the state's testimony, the appellant and his wife went to the deceased's home on the day in question to return their child who had been staying with the deceased and his wife. After stopping their automobile in front of the house the appellant and his wife got into a fight and the deceased, who was in the house, upon seeing the trouble came outside to separate them. In a scuffle which ensued between the appellant and the deceased the appellant took a shovel away from the deceased and then took him by the arm, brought him to the house, shoved him in the front door, and told him to stay in the house. The deceased then got a pistol, came out on the porch, and told the appellant to back up, which he would not do. Appellant and his wife then got in the car, drove off very fast, and in a short time returned, whereupon appellant jumped out, took a shotgun from the car, squatted down by the car, and then began walking down the driveway towards the back of the house with the gun in his hand. The deceased who was standing outside of the house with his wife, upon seeing the appellant approaching with the gun, told his wife to go inside with the baby, saying, "I don't want him
[ 165 Tex. Crim. Page 631]
to kill you because you haven't done nothing to him," and fired a shot with his pistol but not in the direction of appellant. Thereupon, several shots were heard by neighbors and the deceased's wife, who was in the house, the first shot being that of the pistol fired by the deceased. After the shooting ceased appellant was seen walking down the driveway carrying his father to the automobile, in which he took him to the hospital.
The testimony shows that the deceased had been shot one time in the back and right side and that the gun shot wounds were the cause of death.
It is further shown that after the killing appellant stated that he had shot his father and upon returning to the scene with the officers, pointed out a single barrel shotgun, which he said he had used and at such time and place the officers found one exploded shotgun shell. It is also shown that the pistol fired by the deceased on the occasion was delivered by appellant to the officers after the killing, at which time it contained three unfired cartridges and three cartridges which had been fired. It was further shown that about a month before the killing the appellant told his uncle that, "If his daddy don't quit messing in his business he was going to kill him."
Appellant did not testify but interposed a plea of self-defense and in support thereof called his wife as a witness in his behalf.
His wife testified that the reason the appellant returned to the deceased's home was because of her request to return for the purpose of getting their child; that the shotgun was loaded when they returned and the appellant, after getting out of the car, did not kneel down to load it; that appellant did not get the shotgun out of the car until the deceased, with the pistol in his hand, said to him, "I know you have * * * you have got that rifle," "I am going to kill you ...