Tebo v. State

MORROW, Presiding Judge. — The offense is murder; penalty assessed at confinement in the penitentiary for thirty years. " . Appellant worked at night at the Eagle Cafe in Port Arthur, Texas. The deceased worked in the day time at a barber shop. *62 situated a short distance from the cafe. About two o’clock in the morning the deceased entered the cafe. He engaged in a quarrel with the appellant which resulted in a fist fight on the outside of the cafe. After the fight, the parties returned to the cafe, and in a few minutes the deceased left, stating that he was going home. The appellant went to his home (which was near the cafe) and changed his shirt which had been torn in the fight mentioned. He rode to his home in an automobile belonging to a friend. Upon returning to the cafe, appellant claims that he was fired upon by the deceased who used a .22 calibre rifle. On the following morning the appellant quit work about 7:30 o’clock and went to a taxi stand for the purpose of advising the officers that he had been fired upon by the deceased. He took his pistol with him. According to some of the testimony, the appellant went to the barber shop where the deceased worked and made inquiry as to his whereabouts. He also expressed a threat to kill the deceased. However, this was controverted by the appellant. The appellant claims that while he was at the taxi stand the deceased walked up-, cursed him and threatened to kill him, whereupon he shot and killed the deceased. Appellant introduced in evidence the written statement of a witness who had died since the tragedy, which statement reads as follows: “When he (Tebo) walked out of the office the last, I was sitting in the back seat of the car, and I looked at him and he met Eddie Francis and Eddie walked right up close to Tebo and seemed to be smiling. They passed a few words. I did not hear what they said. Eddie Francis stepped back, stuck his hand in his right front pocket in his pants and seemed to pull up his pants. Then Tebo reached in his side and pulled out a black pistol and shot at Eddie Francis. The first shot looked like it might be aimed for his head or about there. He dropped lower and shot Eddie Francis in the body. I am positive there were five shots by Tebo. The boy was down after the third shot and he made two more after he was down on the ground.” It is contended by the appellant that the court was in error in failing to instruct the jury on the law of murder without malice as embraced in Article 1257c, P. C., which reads as follows : “In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justifica *63 tion or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.” Apparently the contention that the statute mentioned should have been given as an instruction to the jury must rest upon the occurrences taking place at the time of the killing. Touching those events the testimony of eye-witnesses is as follows: The State’s witness, Peter Sampay, testified: “Just prior to the killing Eddie Francis and Albert Tebo were standing right close up on one another. They were standing about that far apart (indicating, about a foot and a half or two feet). They were standing there talking and Eddie Francis dropped his hands this way (indicating) and jumped back and then is when the pistol went off. I saw both of his hands. Eddie Francis did not have anything in his hands at all that I could see. * * * After Eddie Francis fell Albert Tebo fired some more shots at him; in fact he fired one more shot at him after he was down. * * * After Tebo shot Eddie five times he walked off that way, (indicating).” The witness R. B. Blackstone testified: “I saw the shooting that day; I saw all of it. * * * I saw Eddie Francis around the taxi stand first that morning. Eddie had not been there so very long before I saw Tebo come up there. * * * It appeared to me, the way I looked at it, that Tebo approached Eddie to talk to him. Tebo went over and talked to Francis. I couldn’t hear what they were saying to each other. * * * Francis was standing there talking to Tebo with his hands in position like this (indicating). Both hands were out like that (indicating) and all at once Tebo shot him. All at once Tebo shoved him off and began shooting him. He shot him until he fell. When he fell then he shoved the gun right down on him and shot him again, and when he got through he walked right across the street right in front of me.” On cross-examination Blackstone testified: “The first movement that was made, that I can tell, was when Tebo shot him — or began shooting him. I hadn’t seen Eddie make any movement like he wanted to fight or anything of that kind before Tebo shoved him and commenced shooting him. That is all I seen.’* *64 In rebuttal the State introduced the witness Robert Lee, who testified as follows: “I saw that shooting that morning. * * * I was right across the alley from the shooting. * * * Before the shooting took place I was setting down there and Eddie Francis was coming towards his home. * * * When he walked to the car — he took both hands like that (indicating) and pulled his pants up. He didn’t have a coat on; he didn’t have anything in his hands either. Just at that time Tebo must have said something to him, because I seen their lips moving but I couldn’t hear. Francis throwed up both of his hands and Tebo started shooting, and at the third shot Eddie went to the ground and Tebo kept shooting. After Tebo shot him he went across the street towards the cafe.” As stated above, the appellant was an employee at the Eagle Cafe and worked at night. The deceased worked in a barber shop in the day time. On the morning of the tragedy, the appellant quit his work and went to a taxi stand at about 7:30 o’clock and remained there until about 9:30, at which time the deceased' came on his way to the barber shop where he worked. In the meantime the appellant went to the barber shop and made inquiry for the deceased. Upon being advised that the deceased was not there, the appellant returned to the taxi stand and there waited until the deceased came. If appellant had killed the deceased during the alleged conflict on the night before the tragedy his contention for an instruction on the law of murder without malice might have been plausible. However, the appellant brought on the conflict on the following day, and his conduct on the morning on which the homicide took place does not warrant a charge on murder without malice. Finding no error justifying a reversal of the conviction, the judgment of the trial court is affirmed. Affirmed.