#### McCLANAHAN v. STATE.

No. 21786.

Court of Criminal Appeals of Texas.

Oct. 22, 1941.

Roi Blake, of Jasper, for appellant.

Spurgeon E. Bell, State’s Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted of murder with malice aforethought, and assessed a penalty of twenty years in the penitentiary.

Appellant had married the sixteen-year old daughter, Irene, of the deceased, and had lived with her but a short time until the young couple had marital difficulties, culminating in a separation. These troubles would seemingly be smoothed over and they would again resume their living together, and again a separation would ensue. About two or three weeks prior to the time of the homicide Irene had come home with her luggage, bruised and giving evidence of having received a beating. Two days thereafter appellant appeared at the father-in-law’s home and demanded that his wife, Irene, go home with him, appellant, to his father’s home, and after making further demands appellant, being armed at such time with a pistol, finally left. Later the appellant again came to the house of the deceased, and followed the mother and his wife to the mail box, and talked to his wife for quite awhile. The wife did not go back at such time, but soon thereafter filed a suit for divorce. Again, on the day before the homicide, appellant drove back and forth in front of the deceased’s home, and finally went in the house, over the objections of his wife’s mother, and demanded that his wife go home with him, and, reaching for his pistol, his wife grabbed appellant’s hand, and finally agreed to go home with him. Mr. Carruth, the deceased, was not at home at such time, but was away at his work. The girl went away with appellant, and when Mr. Carruth came home he was informed of what had occurred. About six o’clock the next morning, on Sunday, Mr. Carruth and his son, Olan, got in their car and went to the home of appellant’s father where appellant and his wife were, the deceased saying:

> “In the morning I am going over there and see if Irene wants to come home or if she wants to live with that boy; * * * If she wants to live with him she has got to stay with him; she can’t come trotting back and forth home; and if she don’t want to live with him and wants to come home, I will bring her back home.”

The father and son then went to the Mc-Clanahan home, and the State’s testimony shows the following took place:

> *854“When my father and I got up to Mr. McClanahan’s house, my father called Irene several times. Mr. McClanahan came to the door, and my father told him he wanted to see Irene. My sister came to the door. The defendant did not come to the door with her at that time. The defendant did not come out on the porch with Irene at that time, but he did come out on the porch after my father walked out of the yard. That was after my father had talked to my sister. When Edward D. McClanahan came out on the porch, he said, ‘Mr. Carruth, you are not going to get her back; she has done promised to go back to me and you are not going to get her back.’ Edward D. Mc-Clanahan had a gun in his hand at that time. The gun that Edward D. McClanahan had in his hand was the gun that is laying on that table. He was holding the gun in his hand down by his side. My father says, ‘Well, she might go back,’ and my father mumbled something, I don’t know what he said; and the McClanahan boy said, T £ you call me a son-of-a-bitch again I will blow your brains out,’ and pointed the gun at him like that; and daddy said, ‘Let it go, I am not scared of you.’ And my sister was standing in the door and the McClanahan boy walked back to the door and taken her in the house, and my father came back in the yard. The McClanahan boy had the gun in his hand when he carried my sister back in the house. I was standing on the porch all that time. I went in the house and asked my sister did she want to go, if she did to come on. I don’t know what my sister said; I don’t know if she said anything. Mc-Clanahan did not say anything then. My father came in the house then. My father asked Irene if she wanted to come on back to the house, if she did to come on, and the McClanahan boy said, ‘No, Mr. Carruth, she is not going;’ and daddy said, ‘She might;’ and McClanahan jumped up and shot my father. When I walked in the room the McClanahan boy had the gun in his hand. He was sitting on the bed when I went in the room. He was still there when my father came in the room. I saw all of that; I was right there present in the room.”

Mr. Carruth died instantly, so- it seems, he having four bullet wounds in his body.

There are no bills of exceptions in the record, but from the State’s witnesses we find ample evidence that this appellant evidenced malice towards the deceased, or anyone else who would have kept him from possessing himself of his wife. We think the jury were well within the facts when they returned their verdict.

The judgment is affirmed.