
    TIGER v. STATE.
    (No. 4486.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.)
    1. Homicide c&wkey;250 — Evidence — Sufficiency.
    Evidence held sufficient to sustain a conviction of murder.
    2. Homicide <&wkey;2821(4 — Questions fob Juky —Penalty.
    In a prosecution for murder, fixing the penalty was a matter for the jury, the Supreme Court having no power or authority to fix the penalty.
    Appeal from pistrict Court, Matagorda County; Sami. J. Styles, Judge. v
    John Tiger was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This appeal is from a conviction of murder with the death penalty assessed.

Besides appellant there were but two eyewitnesses to the killing, Will Carter and Mamie Ghappel. Appellant did not testify. Mamie Chappel, by her own testimony, had been the “kept” woman, of appellant for a long time, and until shortly before the killing. The killing occurred in her house. The deceased, Claude Hughes, was- a white man; the appellant, a negro. The deceased was lulled by being shot. Four bullets struck him. One entered the front of his neck, a little to the right of the center, and went entirely through, striking and imbedding itself in the door facing. This shot powder burned his chin,, and in entering made a little crease, just under his chin. This ball angled up and came out a little to the left of where it went in. Another bullet went in his side under his right armpit, above the elbow, Sy2 or 4 inches from the shoulder. That ball stopped in his body — did not pass through him. Another shot struck him on the nose, a little to the right side, passed down through his nose, but did not elsewhere touch his face or clothing. The other shot struck him just above the eye, and passed back of his eye down and struck and broke his jaw, knocking out one of his teeth. This was a steel bullet, one of the witnesses who particularly examined, testified, and was picked up right in front of deceased’s mouth, and had a piece of bone or tooth and blood on it.

An accurate plat and measurement was made of the room, the doors and various pieces of furniture in the room where the killing occurred, and where the parties were, and where the deceased was standing when first shot or shot at, and where he was when he fell and died. All the witnesses who testified to any of these facts did so with reference to this plat and measurement, pointing out particularly the different places and things from it. It was introduced in evidence, but it is not in the record. Without this there is some difficulty in locating these several things by the testimony alone, as is always the case when a statement of facts shows witnesses testified from a plat.

The house had two rooms in it. It fronted east with a gallery extending almost the whole length. A partition separated the room, in which the killing occurred, from the other room, with a door therein near the center swinging into the south room towards the east wall. The right-hand side of the door into the south room from the gallery hung 1 foot and 4 inches from the partition wall, the two doors swinging back toward one another. Behind the door in the partition, wall was a trunk, which was against the partition wall and so situated that the door in the partition wall would open only at about right angles, the trunk preventing it being further opened. A bed was in one corner, the foot extending towards the center of the room.

Will Carter testified that he, deceased, and two young white men, Clyde and Ewell Koontz, were in Mamie Chappel’s house with her an hour or two before the killing, staying about a half hour, then all left. Clyde Koontz also so testified. The killing occurred between 12 and 1 o’clock at night, or later. Will Carter also testified that he and deceased just before the killing, but not together, approached said house from different directions, neither knowing of the other’s approach until right at the house. He swore that just as he approached the house he heard some loud talking in there. Carter further testified:

“When I got there Mr. Claude Hughes stepped up there just in front of me, on the gallery at Mamie Chappel’s house, and he went right inside the door. When Mr. Hughes got there the door was closed, and he opened it, and I saw him go in, and when he went in I was about as far from him as from here to that stove (indicating about 10 feet); he did not know that I was behind him until he looked back and saw me just as he went in the house. He didn’t do anything when he went in the door; he looked back and saw me just as he stepped inside, and he said, ‘Hello, hello; what is the trouble?’ When Mr. Hughes stepped in the door he stopped right at the side of the door, right close to. the facing, and when I went in I went right by him, in front; that door opened to the inside, and I opened the door and passed right by Mr. Hughes and by Mamie, and just to the left side of him. * * * When I went in John Tiger, the defendant, was sitting right behind the door that you go in, which door pushed back practically against him_, and he was sitting on a trunk right there. Besides the door that I went in there was another door in that room in the partition wall leading into the other room, and the trunk that the defendant was sitting on at that time was right between those two doors; and the shutters to both of those doors opened back against the trunk. At the time of this shooting the door that led into this room was open as far as it could get — it couldn’t get way open, but it stood just about like that, half open; it couldn’t get way open on account of the trunk, the door going back against the trunk; and when the other door was opened the defendant was sitting on the trunk right between the doors. Yes, sir; I went in the room and passed by Mr. Hughes and stepped over to the other side of the room. When I stepped in there Mr. Hughes didn’t do anything at all. When he stepped up there, when they .said ‘Come in,’ he shoved the door open and went in, and he said: ‘Hello, hello; what is the trouble?’ and Mamie went to tell him, and said something out of the way that this fellow here said to her; when Mamie went to tell Mr. Hughes what the trouble was, after he had said, ‘Hello, hello; what was the trouble’ — she said, ‘This nigger told me’ something, you know, out of the way,’ and then he said (indicating the defendant), ‘Why, is you the law?’ Johnnie Tiger said: ‘Why, is you the law?’ John Tiger was still sitting on the trunk at that time. When John Tiger said, ‘Why, is you the law?’ Mr. Hughes said, ‘No; I ain’t the law;’ and John Tiger then said, ‘You must be the law;’ and Mr. Hughes said, ‘No; I ain’t the law;’ and then John Tiger said, ‘What you looking for, trouble?’ and Mr. Hughes said: ‘No; I ain’t looking for trouble,’ and said, ‘No; I just know Mamie;’ and then Johnnie got up off that trunk and goes into the other room. When Mr. Hughes had this conversation with John Tiger Mr. Hughes was standing up right by the door, at which time he didn’t have a thing in his hands. Johnnie said, ‘Huh,’ and got up and went into the other room, and Mr. Hughes had the tobacco in his hands like this (indicating as though rolling a cigarette): He was standing up like this, and went to roll a cigarette, and that time Johnnie came back in, just as he pulled his tobacco out, and Johnnie came right to the foot of the bed— the bed sat right even with the door facing— and he got right to the foot of the bed, and had on an overcoat and had both hands in his pocket, like this, and he was right in front of Mr. Claude, just like this, and he said, ‘You must be looking for trouble,’ and Mr. Claude had his head down rolling a cigarette, and Johnnie said, ‘You must be looking for trouble,’ and Mr. Claude said, ‘No; I ain’t looking for trouble;’ and he said, ‘You must be,’ and that time Johnnie said: ‘You God damn -.’ That is all I could understand, and Johnnie went to shooting, bow-bow, and backed up into the room, but not toward me — X was standing on the other side — and he backed right up into that room, and when he backed into that room, and when the first shot was made, Mr. Claude just fell like that, and he kept falling, and John Tiger just kept backing up shooting, and when Mr. Claude fell he stepped out of the other room, and stepped right over him, and I heard it go ‘clatter, clatter, clatter,’ and the baby hollered in the other room, and Mamie hollered: ‘Oh, don’t shoot iny child !’ and when she said that the baby came running out over Mr. Claude and ran right to Mamie, and Mamie grabbed her and ran right out the door, she and Johnnie and the baby, and I came out from under the bed, right on my knees.”

The officers were called just after the shooting. They, with others, went where the deceased was killed, and then, and also later, made an examination of deceased and the wounds on him, and found in the walls of the house where the balls fired by appellant entered it. All of the physical facts testified to by various disinterested witnesses corroborated Carter’s testimony of the shooting and killing. Appellant left that night, and was not apprehended until the following Monday morning early. The pistol with which he did the shooting was then found on his person, and was shown, to have been discharged recently so as to correspond with the shooting Saturday night or Sunday morning. It was a large bore pistol. It shot leaden bullets, not steel. All of the wounds on deceased unless it was one in the face, were shown to have been inflicted on deceased by .leaden bullets. After the killing, when the officers and others examined deceased, the house, etc., a pistol was found lying in the room in which appellant backed just before he began shooting deceased, and also after he began shooting. How this pistol got there is not explained by the testimony. It was shown to have been the pistol of deceased.

Appellant received no wound, and his clothing even was not shown to have been struck by any bullet. Mamie Ghappel, a negro woman, appellant’s formerly “kept” woman, testified in his behalf, and if her testimony had been believed, she might have made a case of self-defense for appellant. She testified, in substance, that immediately when the deceased stepped in the door he, without any provocation whatever, had a pistol in his hand, and began shooting at appellant. All the physical facts, including where the bullets struck, dispute her directly. The court submitted self-defense based on her testimony, and told the jury in substance to acquit him if they believed the state of facts testified to by her. The jury could not have believed her under the testimony, and should not have done so. It is unnecessary to detail her testimony. The state’s case, without doubt, made a clear case of murder against appellant. The testimony of said negro woman, as stated, might have made a ease of self-defense in his behalf if the jury had believed it. After a careful and repeated study of the testimony, we think it clear and ample to sustain the verdict. The penalty was a matter for the jury to assess. This court has no power or authority to fix a penalty.

The testimony of Bert Carr, which was objected to by appellant, shown by his only bill, was admissible on two grounds: First, it was in effect an impeachment of appellant’s witness said Mamie Chappel; second, it was a res gestse statement made by her. His bill objecting to the admission of this testimony presents no error. Gillespie v. State, 190 S. W. 146. These are the only questions presented.

The judgment is affirmed. 
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