Duke v. State

CHRISTIAN, Judge.

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

Appellant and Sam Stapleton were jointly indicted for the murder of W. E. Holmes. A severance being had, Stapleton was first placed on trial, and convicted. On appeal to this court the judgment of conviction was affirmed. See Stapleton v. State, 113 Texas Crim. Rep., 543, 22 S. W. (2d) 939.

Several hours before the homicide appellant, Sam Stapleton, and the sons of Stapleton had had some trouble with deceased. According to the testimony of State’s witnesses, deceased and some of his friends…