
    WM. BRISCO v. STATE.
    No A-1159.
    Opinion Filed June 15, 1912.
    (124 Pac. 626.)
    APPEAL — Review—Questions of Fact. In the absence of prejudicial errors of law, this court on appeal will not disturb the finding of the jury on controverted questions of fact.
    (Syllabus by the Court.)
    
      Appeal from District Court, Bryan County; Summers Hardy, Judge.
    
    William Brisco was convicted of manslaughter, and appeals.
    Affirmed.
    
      McPherren & Abbott, for plaintiff in error.
    
      Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   ARMSTRONG, J.

The plaintiff in error, William Brisco, •was .convicted in the district court of Bryan county at the January, 1911, term, on a charge of murder and convicted of manslaughter. His punishment was fixed by the court at imprisonment in the state penitentiary for a period of ten years.

The homicide out of which this charge grew occurred at a negro picnic in the farmhouse of a negro named Shelton. The-accused is a white man, and deceased, Albert Simon, a full-blood Choctaw.

The material portions of the testimony introduced on behalf of the state at the trial are as follows: The deceased and one-Sam Billy had gone to the picnic in a buggy belonging to deceased. At about 11 o’clock accused arrived at the picnic grounds and went up to the buggy. The accused and deceased then went south from the picnic grounds and were gone about half an hour, when they returned to the picnic grounds. Thereafter accused, the deceased, and Sam Billy went to the accused’s house. The purpose of going to accused’s is thus stated by Sam Billy:

“Q. How did you three go to Brisco’s house? A. Well, Simon-and Brisco said to me to drive this buggy for them. I told them all right. I did. Q. What did you go to Brisco’s house for? A. He said, ‘Go down there’ —• Q. Who said? A. Brisco said, ‘Got some chock over there.’ He wanted us to go down there and get it. Q. For what ? A. He said he wanted us to go down there to get this beer for that night- — picnic night. Q. Wanted to get this beer for that picnic night? A. Yes, sir. Q. What to do with? A. He said going to sell him. * * * Q. When you got to Brisco’s house what did' you do? A. I stayed in the buggy. Q. What did the others do? A. Went in the yard. Q. Flow long did they stay? A. Didn’t stay no time. Q. What did they do there? A. They went and got the chock — -jug of beer. Q. How many jugs did they get? A. Got a couple of jugs. Q. What did they do with the jugs? A. Brought them in the buggy. *• * * Q. When they got back in the buggy where did you then go ? A. I turned around to-go back to the picnic grounds, towards in that way. Q. Did you stop any place? A. No, sir. Q. Where did you get out of the buggy? A. We got out of the buggy at fellow named Shelton’s house. * * * Q. Going up there to Shelton’s house from Brisco’s house tell the first that took place between this defendant and Simon. A. They had a talk, but I didn’t pay any attention; they had a little cutting up between them. Q. What was ‘cutting up’? A. These two parties; Brisco says he has some Choctaw beer. If any officer came over ■after this beer going to hurt him, and Simon told him no he wouldn’t. He says, ‘If McPherson a little officer come over there, he was going to shoot his brains out.’ Q. That is what Brisco said? A. Yes. Q. What did ,Simon say? A. He says, ‘You can’t do it.’ Q. What was said about money, if anything? A. No, sir. Didn’t say anything about money. I think not. But was something about money when we came back. Q. What did he say coming back ? A. Pie says he got big pile of money. Q. What did Simon say? A. He want his money. Q. What did Simon say to Brisco about his money? A. lie says he owe him $2.50, I believe. I don’t know. Q. Simon told him that? A. Yes. Q. What did Brisco say? A. He says he has big pile of money in his pocket right then. Wasn’t going to pay him right then. Q. What else was said? A. Didn’t say nothing. That is all he said. Q. What— Then when he drove up there to Shelton’s house what did they do when they got there? A. He was drinking pretty sharp as we come up. Q. Who was drinking? A. Three of us. Q. What were you drinking? A. Choctaw beer. Q. That is what you call it? A. That is what it was. Q. Where did you get it ? A. Brisco .gave it to us.”

When they arrived at Shelton’s, Brisco told them to carry the beer into the house.

There was only one witness who heard and saw what was :said and done by the parties in the difficulty which resulted in the fatal shooting. This person was George Rogers, a witness for the •state. After testifying that he saw the three persons come up in the buggy and as to what they did, witness Rogers testified:

“Q. What was said by these parties? A. Then about the next word that I paid any attention to this gentleman called Mr. Shelton to take Simon away from there. Q. Where were you standing and what were they doing at the time he called to Shelton to take Simon away from there? A. Standing in the hall. Q. What direction did that hall run? A. Run east and west. Q. How close were they to you at the time you heard them make that statement? A. About five or six feet, I guess. Q. Do you know what had been said just before that? A. No, sir. Q. Had you heard anything said? A. Np, sir. Q. Had you seen Albert Simon do anything before that time? A. No, sir. Q, what was Albert Simon doing besides talking at that time? A. He wasn’t doing anything at the time he called to him to take him away; only just talking. Q. Who was he talking to, Albert Simon? A. Talking to Mr. Brisco. Q. And Mr. Briscohollered to Mathew Shelton to come and take him away? A. Yes. Q. Had he done anything át all up to that time that you seen? A. Not up to that time. * * * After Mathew Shelton went and took hold of Albert, he said something to Albert and took him out. What was the next thing that occurred— what did Brisco do? A. Walked past me and went into the south room, inside of the boys’ room. Q. How long was he gone there? A. For a minute or maybe not so long. Q. What did he do when he came back, if anything? A. When he come out of that room, he came out with a six-shooter stuck out of his pants like that (indicating), and his vest kind o’covered it; held it that way. Q. What part of the pistol did you see, if any? A. Seen the handle. Q. When he came out holding the-pistol, what did he do? A. Went to the west end of the hall where he could see up on that porch; walked and looked out and stepped back. Q. Flow was he holding his hand then? A. Still' had his hand just that way holding the pistol, and the other one of course was down. Q. That was his right hand holding it?' A. Yes. Q. Flow long did he stand there about this corner of the hallway? A. Walked there and looked out and stepped back in the hallway where I was. Q. How close was he to you when he stepped back? A. Probably six or eight feet. Q. What was the next thing you saw? A. Next thing I saw was Mr. Sam Billy and Simon. Simon come right on in and come right on to Mr. Brisco. Billy stopped at the corner of the porch. Q. Flow far did Albert come up to where Brisco- was? A. Probably six or eight feet. Q. When he got up to Brisco what did he do ? A. Never said a word, just hauled back and struck at him. Q. What did he strike at him with, if anything? A. With his left hand. Q. What occurred ? A. Fie struck twice left-handed. I know he struck once with his right hand, and the next thing I seen Mr. Brisco pulled that pistol out with his arm up defending like that, and he had it in that position (indicating) like, looked like he held it there for a minute or a minute and a half, when he did pull it down, stuck it under his arm, and fired. O. What then occurred? A. Mr. Simon struck two licks left-handed and one right-handed like, and about that time the second shot fired and he turned and hollered and run out. Q. How far was Sam Billy from where this fight was taking place? A. I couldn’t tell you. At that time, when it commenced, he was in eight or ten feet of him. Q. What was he .doing, if anything? A. All I could see — standing, peeping in, and looking. Q. When this second gun fired, where did Albert Simon go? A. He run out and went off outside. I never did see him after he went out of the hall until they brought him back in there. Q. What, if anything, did Albert Simon have in his hand when he was striking? A. Didn’t have anything that I seen at all but his fist. Q. Were you in a position to see? A. Yes, right at them. Q. Were you looking? A. Yes. Q. Did he have anything? A. If he had anything I never did see it. Q. You saw his hand? A. Yes. Q. Who else was with you then, if any one? A. If anybody else was — • if anybody else saw it except Sam Billy, I never seen them. Q. Where was Mathew Shelton? A. In the north room. Q. In this room where the defendant had gone into and come out with the pistol? A. In the south room. In the boys’ room where Mr. Brisco had gone. Q. Did Brisco have any gun, any pistol, when he went in the south room? A. If he did I never seen it. Q. How was he dressed? A. Had on Ids vest, didn’t have on any coat. Had on his vest and pants like any other man. Q. If he had had a pistol at the same place that he had it when he came out, tell the jury whether you would have seen it? A. Yes. If he had had it anywhere like "he had it when he came out, of course I would have seen it. * * * Q. Point it out? A. Here is the north room. You turned right in there. Mr. Brisco was standing right here, probably five or six feet from where you go in the hall. He backed back three or four feet. About that time Simon had got there. That threw him about three or four feet from where I was sitting. When they got up there and commenced to scrap, I sat there and never did get up until he pulled his gun. When he pulled the gun I got up and stepped right around this way. Mr. Simon about that time backed against the north wall of this hall, turned and scrambled and got in that shape, and when he fired the first shot Mr. Simon was out here and throwed Mr. Brisco around here, and he was against the south wall then, and when he got around here I got right in behind Mr. Brisco and standing about three feet of him when he fired the second shot. When he fired this shot this man came back here where he came in. Hast I seen of him he went out like he did when he came iii, and went out of my sight * * * Q. Plow many licks did Albert Simon strike Brisco before Brisco presented the gun up in that manner? A. He struck I know two licks with his left and one with his right. Q. Where did these licks strike him? A. He was striking at him. He wasn’t striking him very much because he was knocking them. * * * Q. AVhen Brisco got this gun and came out there he went northwest — to the northwest corner of the hallway and looked out. How far did he move? A. About five feet. Q. What side of the hallway was he when he moved back? A. On the north north side. Q. What side of the hallway was you on, north or south side? A. Sitting on the north side. Q. From where Brisco was, and from where you were, tell the jury whether or not Brisco would have had a better chance to see around that northwest corner of the house than you would have had ? A. No, sir; not from where he was standing. Q. When he was standing there on the north side of this hallway, Albert Simon came on in the hallway? A. Yes, sir. Q. When he came on in the hallway, how was Brisco standing relative to the north wall of the hall ? A. Standing right against the north wall of the hall looking the way Simon came in. Q. Tell'whether or not in that position he could have seen any further around the front porch than you could have? A. No, sir. Q. Could he have seen any more of Sam Billy than you could? A. Not a bit. Q. He could have seen just what you did? A. That is all he possibly could. Q. All you could see was what? A. Just his head peeping around the corner. Q. That is all you saw? A. Yes, sir. Q. I will ask you to state whether or not if Albert Simon had put his hand in his breast? A. If he had his hand in the breast I didn’t see it. Q. Could you have seen it? A. Yes. Q. You were standing there? A. Yes. Q. Did he do' that? A. If he did I didn’t see it. Q. Would you have seen it? A. I would have certainly, if he had. * * * Q. What did Sam Billy do at the time of this difficulty other than what you have told about having his head around? A. Never done nothing more than what I 'told you I seen. Q. Did he say anything? A. He never did say a word. If he did I never heard it. I told you as near as I can tell all I seen. Q. Tell the jury whether or not when you got up and walked behind Brisco you were in as good a position to see Sam Billy as this defendant? A. Yes. I was. * * * Q. Did you see them search Albert Simon? A. Yes. Q. Tell what he had on; if any weapons. A. All that I seen them get off him was his watch. Q. Who searched him? A. Mr. Cordell. Q. Bob Cordell? A. Yes. All I seen was a watch. He didn’t have a pocket knife. If he did I didn’t see it.”

Constable Cordell testified: That he was about 250 yards from Shelton’s at the time the shots were fired; that he ran up to the house; that he got there in four or five minutes. As to whether deceased was armed, witness said:

“Q. Did you make any examination of his pei'son x-elative to whether or not he had anything on him — a weapon, dr anything of that kind? A. Yes. I examixied all of his pockets; we taken all of his clothing off — practically all except his underwear. Q. What did you find? A. Didn’t find anything except a watch he had on. * * * Q. Did he make any statement to you relative to his conditioxi? A. Yes, he told me he thought he was going to. die. * * * Q. Did he tell you about how long he thought he would live? A. He said he thought he was going to die immediately. Q. After making this statement, did he make any further statement to you about how this affray happened? A. Yes. I asked him how it occurred, and he said, ‘Brisco got my money and then shot me,’ or ‘killed me,’ ox-something to tliat effect; I don’t know just what word he used. Q. Did he make -any statement? A. Not relative to the fight or difficulty alone. * * * Q. What was his size compared with the size of Mr. Brisco, the defendant? A. I don’t think there was very much difference, if any, in the weight of - the two men; some difference- in the heighth of them. Q. Which one was the taller? A. Mr. Bidsco is some the tallest. Q. Simon was possibly a little fleshier? A. Yes, more of a chunkier build. Q. Did you find any beer or anything of that kind there? A. There was two jugs setting on the porch right in the hallway that seemed to have contained some kind of malted liquor.”

This witness with others pux-sued the accused for a mile or a mile and a half and surrounded him in a thicket and arrested him.

Witness Ben Weldon testified that between the 1st and 12th of May, 1910, the accused told him that he intended to kill Albert Simon.

Witness T. H. Jenkins testified:

“Q. Where did you have your first conversation with him in regard to Albert Simon? A First time I remember having a conversation with him was about the 14th or 15th of Febraary. We come fx-om our fish nets. I had never met Albert Simon. Wasn’t personally acquainted with him. Q. Where did yoxt see Albex-t Simon at that time? A. I didn’t see Albert Simon, we come from the place Albert Simon had broke his buggy down. He says, ‘That is Albeit and Joe’s buggy. I would like to have come up with him.’ That night we was talking about the Indians, Albert Simon and Joe; I didn’t know the other Indian’s name only Joe; I never learned his name. On the road he says to me: ‘Them Indians are bad Indians. Joe snapped a pistol in my face on the road from Dennison one day.’ He says, ‘I can kind of control Albert when he is drunk; Joe is a little hard to control.’ He says, ‘If either one of them was to fool with me I would never give him the show of a dog. I would kill him just as I would a dog.’ That is the words he said. Q. Albert Simon was the one he said? A. Yes. Q. That other-one Joe? A. Never learned his name, only Joe. Q. That is not Billy? A. No, sir; fellow that went with Simon. Q. Did you have any conversation with him in regard to Albert Simon? A. Yes. On the morning of the 27th of February I was going down from Mr. Carr’s, going down to my place; I was camped on the river. I spent the night of the 26th up tO' Mr. Carr’s. That morning he had been drinking and called me out to one side, out behind the lot, he said to me, says, ‘You are going to stay with me, are you?’ I says, T have always, done that, yes.’ He says, ‘They aint going to get my cow.’ I had been over to Mr. Carr’s to see about a note. He was $6.75 due on it. I says, ‘I’ll loan you the money to pay it off’ — due on the 25th of April. — he says, ‘You are going to stay with me. Albert is in the house. He has got $800. If you will stay with me we will get it.’ I made an excuse to go away from him. He says, ‘come and go in the house and I will make you acquainted with him.’ I did. That is the first acquaintance with him. I made an excuse to go down to the river, and I never saw Mr. Brisco for several days afterwards. Fie was drunk at the time I met him afterwards. That is all that he said about it.”

The material portions of the testimony introduced on behalf of the accused at the trial are as follows:

Witness Ben Shelton testified that he saw the parties at the Shelton house; that he heard noise in the hall; that he heard Brisco say, “Go away Simon.” That he opened the door and saw Sam Billy going off the porch. Further:

“Q. You know what Simon was doing when the second shot was fired? A. Yes. Q. What was he doing? A. He was using both hands ? Q. Could you tell whether or not he was using both hands? A. Yes, in sight, them both was up. Q. That was after the first shot ? A. Yes. * * * Q. Did Simon have anything in his hand? A. Not a thing. Q. Did you hear either of them say a word ? A. No, sir. Q. What did Simon do ? A. The last firing? Q. Yes. A. He staggered up against the wall, he couldn’t do anything. Q. Where did he go? A. Went out of the house and jumped over and went into the woods and fell. Q. How far was that from the house? A. I guess 100 yards. Q. What direction was it? A. I don’t know. What do you mean? Q. What did Brisco do? A. I don’t know. I was turned from them when they ran out. One of them run out. Billy was peeping around the corner of the house. I only looked to see what the trouble was.”

Witness Harriet Shelton testified that she was in the kitchen at the time of the difficulty; that she heard Brisco tell her husband to “come and take Albert away from there.” That after Shelton took Albert away, Albert came back in the house; that she heard Brisco say, “Go away, Albert”; that she went to the kitchen door, peeped out, and saw the blaze of the pistol.

The accused testified that he and deceased were friends up to the time of the difficulty; that he went to the picnic grounds and saw deceased there; that he, deceased, and Sam Billy ate dinner with several others, and drank beer with the crowd; accused denied that he had any conversation about money with deceased as they drove to Shelton’s, but did have such conversation as they got to Shelton’s; that he went in to get a drink; that deceased asked for' $2.50, and he denied owing it; that he told deceased not to start any trouble, that they would get arrested; that deceased said, “Damn the marshal and damn you; I would kill you”; that Sam Billy standing near said, “I will help you”; that he told Shelton to come and take Albert away; that he went into the south room and saw a pistol, and that he picked it up and walked back to the porch; that he saw deceased and Billy standing north of the gate talking; that he saw the deceased “take something out of here and stick it here — bulk of something; I couldn’t tell what it was”; that Simon and Billy came onto the porch and he told them to go away. The following testimony was then given:

“Q. What occurred then? A. First thing I. knew he was hammering on me. Q. What occurred then? A. He cut me. Q. Yes? A. I shot him. Q. How many times had he struck you? A. I disremember just how many times he did strike me. Q. Why can’t you recollect it? A. He must have struck me four or five times. Q. Why-were you calm or frightened ? A. I was frightened. Q. What was he doing when you got out your pistol ? Started his hand in here. Q. What hand was that? A. Right hand.”

He testified further that Sam Billy was peeping around the corner; that he left-after the fatal shooting and went to the woods; that he was afraid the crowd would hurt him. Accused denied the statement of witness Weldon that accused said he would'kill deceased if deceased fooled.with him, and denied the testimony of witness Jenkins.

On cross-examination accused stated that four years previous deceased had drawn a gun on him, and that they were friendly.' — •

“Q. Didn’t you stay with him on that night? A. Yes. * * *. Q. Always been friendly? A. Yes. Q. You were jolly; as you stated a few minutes ago, he didn’t mean anything by that? A. No, sir. Q. You took it as a joke? A. Yes, sir. Q. You were friendly, that day and afterwards? A. Yes._ Q. You were both drunk that day? A. I don’t claim I hadn’t taken a drink.”

The accused denied that he went to his house to get Choc- . taw beer, but says Simon went and got some beer.—

“Q. After he came back, what did he have? A. Had some beer. Q. What kind of beer? A. Said it was Choctaw beer. Q. Did you drink any of it? A. I did. Q. The rest of the boys? A. Yes. Q. What else did you do? A. All ate there and drank and had a good time. Q. You were feeling pretty good? A. I couldn’t tell you. Q. You get drunk and have a good time? A. Yes.”

Accused said as they went to Shelton’s there was no disturbance; that the)»- were drinking the Choctaw beer and were pretty full. As the reason for going to Shelton’s accused said:

“Q. When you got in the buggy, why did you go up to Shelton’s house? A. After some water. Q. Didn’t you leave your own house; didn’t you have any water there? A. That didn’t do me, I wanted some more.”

Accused denied taking the jugs of beer out of the buggy, but says that there were two jugs in the buggy. That when they got in the house accused and Simon got drinks of water. That accused then went into the room, got the pistol, and came back in a minute; that he had seen a pistol in the back buggy seat during the day, and that Simon had it in his hip pocket one time at the picnic grounds. As to whether accused could see Simon and Billy when he (accused) came out of the room, he said:

“Q. After you had been in the room and came out and looked out towards that front gate, what did you hear them say, if anything? A. I couldn’t see them. Q. When they were out in the yard? A. I heard them — they were going to kill the whole thing. * * * Q. When they said that, you saw them? Were they looking at you? A. Coiddn’t see them. Q. He had nothing in his hands when he came on to you; struck you with his left hand, and then right hand? A. I don’t know what he had in his hand. Q. Couldn’t you see his hand? A. It wasn’t open. Q. Did he have a pistol in his hand? A. If he did I never did see it. Q. Did he strike you with his right hand-before you fired the gun, or after? A. He had struck me one lick with his right hand before I fired the gun. Q. He had put his hand into his breast before you fired some little bit? A. No, sir; not very long. Q. He had put his hand in there before you fired. Then he took it out and struck you with his fist, and all of that was done before you fired? A. Yes. Q. How long after he put it in the second time before you fir.ed? A. I don’t know just right now. Q. When you fired the first shot his hand was in his breast? A. Yes. Q. He was hitting you with his left fist after you fired? A. Yes. Q. You fired again, his hand still in there? A. I fired the two shots might near • together. Q. How far were they apart? A. It wasn’t long. Q. Then the second shot he hollered and ran? A. He didn’t run. Q. What did' he do? A. He staggered off. Q. You put the pistol up against him and fired ? A. It wasn’t right against him I don’t think. Q. How close to his stomach was the barrel of your gun? A. It wasn’t right against him. Couldn’t have been far. Q. You meant to kill him? A. I aimed to keep him from killing me. I thought he was going to kill me. Q. You aimed to kill him? That was your intention? A. Of course I did; I wouldn’t have shot him if I hadn’t. Q. You wouldn’t have shot him if you hadn’t? A. I thought he was going to kill me. Q. After you fired the second shot, what did you do then? A. Walked into the room. Q. Did you have any bruised places on your head? A. Yes. Q. Any skinned place? A. I don’t know as any skinned place on my head.' A little place on my arm. Stayed sore a long time after I was put in jail. O. Sam Billy didn’t even get in the hallway when you were scrapping? A. tie was on the porch. Q. Never did come in the hallway during the time you were fighting? A. No, sir. Q. He was on the outside on the front porch, and all you could see was— A. Yes. Q. You didn’t see him do anything? A. I had about ■all I could tend to on the other side. Q. didn’t you see anything? A. No, sir. Q. You didn’t see him make any move toward you; you didn’t see him come in and atempt to hit you with anything? A. He looked like he was standing in pretty good shape to do it. Q. He didn’t touch you? A. No, sir. Q. He didn’t make an attempt to come towards you after the fight started? A. He was coming there. Q. He was standing there peeping around this corner you have said? A. Yes. Q. Did he come anywhere?' A. That is all the farther he come.”

Witness Cleveland Ross testified that deceased’s reputation was pretty bad, but on cross-examination admitted that the statement was based upon some trouble with the Sims boys which they told him about.

Witness H. N. Roberts testified that the reputation of deceased was “not very good,” but admitted on cross-examination that, “I don’t consider it bad.” The deceased was sort of a fussy man; never wins a fight. Further that accused and deceased were about the same size; accused being a little taller.

Witness Lon Griffin testified that deceased was a kind of “fussy” man; not dangerous.

Witness George Marsh testified that deceased was “fussy.”

Witness Milt McPherson testified that accused was tallef than deceased; Simon was fleshy.

Witness Mathew Shelton testified that, at the time witness started from the house immediately after the shooting, he met parties about 100 yards, from the house; that Sam Billy was at the southeast corner of the kitchen when he left.

Witness Ben Shelton testified that he was there when deceased was searched; that he had'no weapon of any kind on him, not even a pocketknife.

Witness John Brown testified that he met Shelton about 50 yards from the house tunning; that Shelton said, “Yonder goes the man.” That when deceased was searched he had no weapon on him, only a watch.

Witness Bob Cordell testified that accused had on a shirt and vest; “shirt was buttoned all the way.”

Witness George Rogers testified that Brisco carried the two jugs of beer from the buggy to the house; gave them to Mathew Shelton, who put them in the north room.

Witness Jack Kelly testified that he was deputized by Bob Cordell to assist in arresting accused. That he ran him a half or three-quarters of a mile; that accused was running and looking back all the time until he was caught.

On surrebuttal, witness Mathew Shelton testified that he did not see accused take the jugs to the house. That he does not know where the jugs were when the difficulty took place. Witness Ben Shelton testified that Sam Billy did not assist in taking deceased into the house after he was killed.

Upon the foregoing facts a conviction for murder would have been sustained. We have carefully examined the assignments of error and briefs of counsel, and find no prejudicial errors of law.

The judgment of the trial court is affirmed.

FURMAN, P. J., and DOYLE, J„ concur.  