
    John Hamilton v. The State.
    No. 1106.
    Decided April 12, 1911.
    Murder—Sufficiency of the Evidence—Conflict of Testimony,
    Where, upon trial of murder, the evidence sustained a verdict of conviction of murder in the second degree, and the court fairly submitted the issues arising upon the evidence to the'jury, there was no reversible error, although the jury could have found otherwise. See opinion for evidence held sufficient to sustain a conviction of murder in the second degree.
    Appeal from the District Court of Brazos. Tried below before the Hon. J. 0. Scott.
    Appeal from a conviction of murder in the second degree; penalty, ten years imprisonment in the penitentiary.
    The opinion states the case.
    
      V. B. Hudson, for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   HARPER, Judge.

In this case appellant was charged with murder. Hpon a trial he was adjudged guilty of murder in the second degree, and his punishment assessed at ten years confinement in the penitentiary.

The court in a proper charge submitted murder in the second degree, manslaughter and self-defense, both from actual and apparent danger. There is no complaint of the charge of the court, the only assignment of error being that the evidence is insufficient to support the verdict of the jury. The trial court who heard the witnesses testify has passed on this matter and adjudged that the testimony amply supported the verdict, and we would not be authorized to disturb this finding unless the evidence wholly failed to support it. '

Jack Williams testified: "I know Johnnie Hamilton, the defendant; I knew the dead man, Bennie Lister. I saw Johnnie Hamilton, Tom Brown and Bennie Lister on the Sunday that Bennie Lister was killed. I first saw the three boys in Hr. Shelton’s pasture on a stump talking; Johnnie Hamilton had his gun with him, á double-barrel breech-loader; they were sitting on a stump talking about ten yards from where this killing took place. I walked up there where they were talking. Benniq Lister was there with him; he was sitting on his horse. When I walked to them they were .down by a tree; all three of them were playing cards; Bennie Lister was dealing Monte and Johnnie Hamilton was piking when I walked up to them; Bennie Lister breaks Johnnie Hamilton; then Johnnie Hamilton said he was broke all except six bits; then Johnnie Hamilton staked Tom Brown to the six bits to play Bennie Lister, and they played, and Tom Brown breaks Bennie Lister down to eighty or ninety cents; Bennie Lister then told Tom Brown that he, Tom Brown, had marked his cards, and Tom told him that he did not mark them, and Bennie told Tom to let him see his fingers and Johnnie Hamilton said to Ben Lister, ‘If you believe he had anything to mark the cards, why don’t you make him turn his pockets so that he can see if he had anything.’ Bennie Lister told Tom he had marked the five-spot of spades, and that he could not play on the five any more, and Tom said if he could not play on the five that he was not going to play any more, and Bennie Lister said: Well, if you ain’t going to play any more, that he, Tom, would have to give him his dollar. Tom Brown said he was not going to give it back, that he won it fair, and Bennie jumped up and caught Tom in the collar, and told him, to give his dollar back, and Tom ran his hands in his pocket and give Bennie Lister the dollar, and when Bennie Lister told.Tom to give him the dollar hack Johnnie jumps up and runs down the gully with his gun, and says, ‘Tom, don’t give him a God damn thing; you won it fair.’ Bennie Lister then called John Hamilton back. Johnnie Hamilton was then running oil, and Bennie told him to ‘come on back, boy, and let’s play some more.’ Johnnie Hamilton says, ‘Ho, I ain’t going to play any more,’ and did not come back. Bennie Lister then hollered at Johnnie Hamilton and said: ‘God damn you, I am going to get you yet;’ and Bennie Lister also said, T am going to1 put every .God damn one of you in,’ and I said to him, ‘Don’t put me in, I have not been playing,’ and Bennie winked his eye at me and told me that he was going to put us in, that he was just after getting Johnnie back to play. Johnnie Hamilton was about one hundred yards from us, still going; he was sorter trotting like; while they were seated around the game Johnnie Hamilton had his gun kinder under his leg, sitting on it. Bennie Lister had his slicker down and was sitting on that, and was playing cards on a portion of it; at the time Bennie-Lister was taking the money from Tom Brown, Johnnie Hamilton was leaving and going oft down the gully kinder trotting; then Bennie Lister grabs up his slicker and says, ‘Never mind, Johnnie, you have been running over me a long time; I am going to get you/ and ran to his horse and got upon his horse, and went sorter in a kind of trot—half lope like—and went away up by the lane. Johnnie circled around and came back to the lane. Lister went up the field by the lane toward Hr. Shelton’s. That was the only way he could get out of that pasture. That was the general direction that Johnnie went, but not exactly, as Johnnie circled around the gully and then turned back across and went under the fence and over to the far side of the lane, and was standing there as Bennie came riding up inside the field. Johnnie Hamilton had not got more than about thirty yards from where the game was when Bennie Lister was making it to his horse to get on. I saw Johnnie Hamilton shoot. He was standing in the lane when he shot. Bennie Lister was going on up inside of the' field. When I heard the gun fire and looked up I saw the horse, and Bennie sitting on the horse, and the horse was reined up. I did not see whether the horse was reined up first, or whether the gun fired before the horse was reined up. When I heard the shot 1 looked at them, and the horse was reined up then. The horse was facing Johnnie, and when he shot Bennie Lister jumped off of his horse and ran to the tree and fell down. The fence was between Johnnie Hamilton and Bennie Lister when Johnnie shot Bennie. Bennie Lister never had anything but a pocket-knife. When Bennie got iip to make Tom Brown give him the money back and caught hold of him with his hand, he, Bennie Lister, had his knife out. Bennie Lister did not have any gun or pistol of any kind. After Johnnie shot Bennie I went up there and Johnnie said to me: ‘God damn him, I believe I will go over there and put the other load in him/ and said he would kill anybody about the Brown boy. He also told me not to tell anybody about it. I went and told Mr. Shelton that,there was a man dead up there. I told him it was Ben Lister. When the shooting occurred Johnnie was across the lane from Ben about thirty steps away. He was in some cactus under a tree top. Tom Brown and myself were about a hundred yards away. Johnnie was sorter up under the tackles standing right there when he fired the .shot that killed Bennie Lister. This killing occurred in Brazos County in the State of Texas on the 3d day of April, A. D. 1910.”

Maggie Mayo testified: “Johnnie Hamilton had been in the habit of carrying his gun, and I advised him not to carry his gun with him, and Johnnie Hamilton replied that Jimbo Hunter and Bennie Lister had been running over him long enough, and that he was going to kill them both, and that his white papa would get him out of it; he said also, ‘My white papa told me I ought to have done it long ago.’ He called Mr. Shelton his white papa. This conversation occurred on Friday before the Sunday on which the killing occurred.”

Under this testimony we can not say that the verdict is unauthorized, The jury could have found otherwise under the testimony offered on behalf of the defendant, but they did not do so. The court having fairly submitted the issues made by the testimony, and the jury having found adversely to him, we are not disposed to disturb their verdict. The judgment is affirmed.

Affirmed.  