179 S.W. 561
THOMPSON 
v. 
STATE.
(No. 3718.)
Court of Criminal Appeals of Texas.
October 20, 1915.
Page 562
        Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
        Floyd Thompson was convicted of murder, and he appeals. Affirmed.
        Homer L. Baughman, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
        PRENDERGAST, P. J.
        Appellant was convicted of murder, and the death penalty assessed. It is unnecessary to give but a 
brief statement of what the evidence, with certainty, establishes.
        Appellant was a young negro man just about grown. He made his home with his father, who was a 
farmer and lived on a farm several miles in a southeastern direction from Fairfield, the county seat of 
Freestone county. Appellant seemed to have no special business, had no crop to work, or at least did not 
work any of his own. He seemed to have worked around in the neighborhood, hunted a good deal, and 
loitered around generally. Deceased, J. I. Casey, lived at Fairfield. Some time before the killing he and 
appellant swapped horses, whereby appellant became indebted to deceased for $55, and to secure it gave 
deceased a mortgage on the horse he at that time got from deceased and other property, including a crop 
which he claimed he was to raise during 1914. Just before the killing, which occurred on Sunday May 24, 
1914, Casey ascertained appellant had no crop and was not working any that belonged to him. He 
thereupon on said date rode horseback down to see appellant, and did see him. He did not find him at his 
father's, but at another place a few miles from his father's. The evidence clearly justified the jury to 
believe that Casey, a few days before, had endeavored to get appellant to deliver said horse to him in 
satisfaction of the debt, which appellant refused outright to do. When Casey found him on that Sunday 
morning, he induced him to agree to surrender the horse to Casey in satisfaction of his debt and 
mortgage. The horse at the time was either at appellant's father's home in the pasture or in another 
pasture at or adjoining his father's. When appellant and Casey separated, Casey was horseback, and had 
to ride around circuitous roads several miles to reach appellant's father's, which he did, to get the horse. 
Appellant, however, being afoot, could cut across the fields and country, and did do so, and reach where 
the horse was, traveling not so far, which he did. At the house where he stayed the night before, where 
Casey found him, he had with him a big six-shooter. Between there and his father's he had left at a 
neighbor's a shotgun. In going to where the horse was he took this six-shooter along with him, and also 
went by and got his shotgun, and took that too. When Casey reached his father's to get the horse, he 
found his father and his father's wife at the house, told them his mission, and his father went with him in 
search of the horse wholly unarmed. The testimony clearly justified the jury to believe that appellant, 
knowing Casey would hunt for the horse in his father's premises, would not find him there, but would find 
him in a pasture of another near by, secreted himself in an old, abandoned, vacant house, and, when 
Casey got in shooting distance of him, fired upon and killed him without Casey knowing he was there or 
intended any such act. Casey was on his horse when he was shot. Appellant shot at him twice at the time 
in quick succession. Casey's horse ran some distance when Casey was shot before he fell from the horse. 
The testimony also clearly authorized the jury to believe and find that, when Casey fell off his horse dead, 
appellant in a few minutes went up to where his body was and fired two other shots with a shotgun in 
Casey's body, thereby shooting off practically the whole of his face and all of his teeth out, and, as some 
of the witnesses said, nearly shooting his head off. He then carried the body across a fence into a pasture 
where there was a considerable pool of water. He tied a rope around the neck of deceased and around the 
horn of the saddle on the horse of deceased, and dragged the body some distance to this pool of water, 
and then dumped the body into the pool, where the body sank out of sight. He then hid both his pistol and 
shotgun in the woods near where the killing occurred, where they were both found by the state's 
witnesses and officers, identified and introduced in evidence on the trial of the cause. Where all these 
things occurred was a somewhat secluded place and in the woods. In these woods at the time appellant 
tied and secreted deceased's horse, and kept him there until some time that night, when he got on him 
and rode him several miles in an attempt to escape, and then turned the horse loose, where he was found 
by a neighbor the next morning. Appellant fled and evaded arrest, although diligent search was made for 
him, until perhaps about the 1st of January following when he was found at Ft. Worth, going under an 
assumed name, arrested, identified, and taken back to Freestone county, where this trial occurred.
        When Casey did not return home that Sunday night his wife became uneasy, and notified the officers 
and friends of her fear that he had been foully dealt with. The officers and citizens in the community near 
where the killing occurred, of course, became aroused, and, in different bodies, began searching
Page 563
for Casey, but did not find his body until some time Monday. When Casey left home he had $30 or $40. 
When his body was found his pockets had been turned inside out, and no money could be found. The 
neighbors and officers then began a search over the whole community for appellant, but did not find him. 
Among other negroes, they arrested his father and confined him and them in jail for awhile. It seems after 
an investigation they turned him and all the others out, and became satisfied that appellant was the guilty 
party. Still later his father was killed. On the trial appellant claimed that he first shot Casey or at him twice 
in self-defense, and that his father, not he, afterwards went to the body of Casey where it had fallen and 
shot the shotgun into his body, with the result as described, and that his father, and not he, dragged the 
body and put it in the pool of water. His claimed self-defense was submitted by the court's charge in the 
most favorable light to him, and the jury found against him, as they unquestionably should have done 
under the circumstances. The state also clearly disproved that his father shot the last two shots into the 
body of deceased, and that his father dragged the body and put it in the pool, but, on the contrary, 
established with certainty that he, and not his father, did this. He fled the country; his father did not. 
Appellant, as stated, was arrested about January 1, 1915, taken back to Fairfield, placed in jail, and kept 
there until his trial occurred on April 22, 1915.
        When the case was called for trial appellant made a motion to change the venue. When this was 
presented, the state asked for time to file a contest, which the court allowed. It seems the contest was not 
at first sworn to. When this was shown, the state again asked the court for time to do this, which the 
court granted. There was no error in the court's action, and no possible injury to appellant is shown by his 
action. Baw v. State, 33 Tex. Cr. R. 24, 24 S. W. 293.
        The court then heard the testimony on his said motion. He introduced but a few witnesses. Only one 
of the witnesses on this hearing testified that, in his opinion, appellant could not get a fair and impartial 
trial; while another one of his witnesses as distinctly swore the reverse. The state introduced more than a 
dozen witnesses, all of whom testified the reverse of appellant's contention. There can be no question but 
that the state proved the reverse of appellant's contention, and the judge, under the evidence, without 
doubt, correctly overruled his motion for a change of venue and all the questions incident thereto.
        During the progress of impaneling the jury several veniremen failed to appear and answer when 
their names were called. Appellant, in effect, thereupon objected to proceeding further until these absent 
veniremen were produced in the order in which their names appeared on the list. The court, in approving 
appellant's bill on this subject, stated that in each instance the court ordered an attachment for the juror, 
and that later each of the jurors who were absent when their names were called were produced and 
passed upon in the usual way; that the defendant exhausted but 12 of his 15 peremptory challenges. As 
held in all the cases, unnecessary to collate, the court's action was correct and presented no error 
whatever.
        When the state closed its evidence in chief, appellant made a motion for an instructed acquittal, 
because the state had not proved venue. The bill in no way states what this evidence was, and is wholly 
insufficient on that account to present any error. However, the evidence as a whole, without any question, 
was clearly sufficient to prove venue. Besides, one witness swore positively the killing occurred in 
Freestone county.
        Appellant also made a motion, it seems after the jury had been duly organized and the trial 
proceeded with, to discharge the jurors and jury because he claimed that one of them was not a qualified 
juror. The court heard evidence on this subject and overruled his motion. What that evidence was is in no 
way disclosed by the record. Doubtless, if it had been, it would have clearly required the court to overrule 
the motion. We must presume, under the law, that the court's action was correct.
        Appellant requested several special charges on the subject of his claimed self-defense. The court 
correctly refused to give any of them because, as stated by the judge, his main charge embraced every 
question on the subject which was necessary or proper for the court to give. We think it entirely 
unnecessary to copy any of his special charges or that of the court, for, as stated above, the court 
submitted his claimed self-defense in a most favorable light to him on every point which the evidence 
would have authorized or suggested.
        This being a death penalty case, we have given the record, the statement of facts, and appellant's 
brief thorough consideration. We think the evidence establishes without any sort of doubt appellant's guilt; 
that the case was in every way fairly and carefully tried without any error against him having been 
committed.
        It is therefore our duty to affirm the case, which we do.