Sanders v. State

36 S.W.2d 1032, 117 Tex. Crim. 426, 1931 Tex. Crim. App. LEXIS 446

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 1931
• Docket: No. 13907.
• Status: Published

Opinions

CHRISTIAN, Judge.

— The offense is murder; the punishment, confinement in the penitentiary for fifty years.

F. C. Cox, deceased, was a peace officer. An attempt on his part to arrest appellant resulted in a difficulty. According to the State’s testimony, appellant cursed deceased and struck him. Appellant and his witnesses testified that deceased cursed appellant and hit him over the head with his pistol. Appellant was finally placed in jail by deceased, but was released on bond on the following morning. The homicide occurred in a restaurant where deceased was sitting at the counter. Using a shotgun, appellant fired three times through the window of the restaurant from the outside. Each of the shots took effect, and resulted immediately in the death of deceased. According to the testimony of State’s witnesses, appellant went to a store some time prior to the homicide with another party for the purpose of securing a shotgun and some shells. Appellant’s companion purchased the shells and rented the shotgun. Thereafter appellant took the shotgun, entered a rent car and rode to the vicinity of the restaurant. Alighting from the car, appellant immediately opened fire upon deceased. It was the further version of State’s witnesses that deceased was making no demonstration at the time, but was merely sitting at the counter in the restaurant with his face toward the window through which appellant fired. Appellant testified that he armed himself and went to the restaurant for the purpose of having deceased explain to him why he had been threatening to kill him. He said that as he alighted from the car with the shotgun deceased made a motion as if to pull a pistol and he fired upon deceased for the purpose of protecting his life. Several witnesses for appellant testified that they heard deceased threaten to kill appellant.

Appellant contends that the evidence is insufficient to show that he acted upon his malice aforethought in killing deceased. This contention cannot be sustained. We deem it unnecessary to enter into a discussion of the question.

Appellant’s motion for new trial was based in part on alleged newly discovered evidence. Attached to the motion were the affidavits of several witnesses whose testimony he claimed to be material. Again, it was alleged in the motion for new trial that a prejudiced juror had, without fault on the part of appellant, sat in the trial of the case. If any evidence was heard on the motion it is not brought forward for review, either by bills of exception or statement of facts. The order of the court overruling the motion for new trial recites that evidence was heard thereon. Where the order recites that the court heard evidence on the issue, this court must presume that the action in overruling the motion was correct and that the trial court acted upon evidence that was sufficient to justify his action. Harcrow v. State, 97 Texas Crim. Rep., 274, 261 S. W., 1046; Hughey v. State, 98 Texas Crim. Rep., 413, 265 S. W., 1047; Cruochett v. State, 99 Texas Crim. Rep., 572, 271 S. W., 99; Sykes v. State, 109 Texas Crim. Rep., 39, 2 S. W. (2d) 803; Rios v. State, 110 Texas Crim. Rep., 68, 7 S. W. (2d) 535; Lopez v. State, 84 Texas Crim. Rep., 422, 208 S. W., 167.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.