
    JOHNSON v. STATE.
    (No. 6729.)
    (Court of Criminal Appeals of Texas.
    March 8, 1922.)
    Homicide &wkey;>250, 354 — Evidence held to sustain conviction for murder with death penalty.
    Evidence, tending to show deceased endeavored to avoid a difficulty with defendant, who pursued him and stabbed him to death, helck sufficient to sustain a conviction of murder, with punishment fixed at death, notwithstanding defendant’s claim deceased attacked him with a club.
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    Abe Johnson was convicted of murder and sentenced to death, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was indicted in Polk county for the offense of murder. A trial there resulted in a hung jury. The judge of his own motion then transferred the cáse to Liberty county, and upon trial there a conviction resulted; the penalty being assessed at death.

No bills of exception are brought forward in the record. The only question subject to review is the sufficiency of the evidence to support the verdict. Appellant and deceased were both employés of' the Saner-Ragley Lumber Company. Appellant was foreman of a repair gang working on the tram railroad connected with the mill. Deceased was mill foreman. R. M. Eagle was superintendent of the entire plant, having general supervision of the mill, tram railroad, timber, and everything in connection with the plant. The homicide occurred on Monday morning. The mill proper had been shut down for a few days on account of some breakdown, and in making repairs it was necessary to do some concrete mixing. On Sunday deceased needed some additional shovels for this work, and at the direction of Eagle had sent one of his hands to the railroad tool house and gotten two shovels. On Monday morning when appellant started his gang to work he missed the shovels, and was told by one of his hands that some one had come to the tool house on Sunday and gotten them. It is not made to appear from the record that appellant at this time knew of the superintendent’s authorization of the deceased to get the shovels. When appellant came to the mill on Monday morning looking for them, deceased told him he had the shovels, and needed them about the repair work so the mill could be started \ip. Appellant insisted that he needed the shovels, as he had five men and only three shovels. Deceased told him to send his two extra men to the mill, and he would give them work there during the day, but appellant declined to do this. This conversation occurred on the outside of the mill, and was heard by several witnesses, all of whom testified that at the time neither of the parties appeared to be mad, except one who says appellant seemed to be out of humor about the shovels. Both appellant and deceased went from the point where the conversation first occurred under the mill and several witnesses say the next thing that attracted their attention was appellant saying, “Tip! yip!” and, upon looking, they saw appellant with his knife open, advancing on deceased, who was backing away. Deceased backed 10 or 12 feet with appellant pursuing him with the drawn knife. Mr. Eagle, the superintendent, did not hear the conversation between the two with reference to the shovels, but when he appeared upon the scene he saw deceased backing away from appellant, who was following him up with his knife drawn. Mr. Eagle says that he heard deceased say to appellant, “Yonder comes the superintendent; let him settle it.” Immediately, after this remark from deceased they backed out of Eagle’s sight behind some lumber under the mill. Eagle and all of the witnesses agree that at the time deceased was backing away from appellant deceased was unarmed. Eagle went immediately under the mill to where the parties were, but before he reached them deceased had secured a stick, and Eagle saw it upraised, and the parties were clinched at that time. When Eagle got to them appellant had already cut deceased in two places, and was in the act of striking again with the knife when the witness got hold of him and pulled him loóse from deceased. Appellant had been struck on the Head with the stick, and was bleeding at this .time. Deceased died four days after having received the wounds. In a dying declaration he stated that after they went under the mill house he again told appellant to send the extra hands up to the mill, and he would give them wtork during the day, but that appellant refused to do this, and stated he would turn in the time of the hands, and would also report him (déceased) to the office, whereupon deceased told appellant that “he could say too much about that.” He claims that at this time appellant drew his knife and advanced upon him, and that he (deceased) retreated and got hold of a stick, but that appellant closed in on him, and was too close for him to use the stick with any effect or prevent appellant from cutting him. Appellant claims that deceased was the aggressor; that he secured the stick and advanced upon him (appellant) and struck him with the stick three or four times over the head before he (appellant) ever cut or attempted to cut deceased.

The foregoing is substantially all of the evidence introduced upon the trial. The issue of fact was submitted to the jury in an appropriate charge on self-defense, and the jury declined to accept appellant’s version. The fact that appellant was not supported in his statement by any of the eyewitnesses, but that all of them put appellant in the wrong as being the aggressor in the difficulty, was his misfortune.

While the jury inflicted the severest penalty known to the law, yet we are unwilling to say they were unauthorized in doing so. They saw the witnesses and heard them testify, and were justified in reaching the conclusion that appellant became angry because the shovels had been removed from the tool house, and that, notwithstanding deceased had appealed to the superintendent, who was approaching, to settle the matter as between them, appellant declined to do so, and pursued deceased and killed him for no other reason than appears from the record. Under this state of facts we do not feel disposed, nor would we be authorized, to disturb the verdict of the jury.

The judgment of the trial court is affirmed. 
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