Mathis v. State

• Decision Date: 12 December 1894
• Citation: 28 S.W. 817
• Parties: MATHIS v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 817

MATHIS v. STATE.

Court of Criminal Appeals of Texas.

December 12, 1894.

Appeal from district court, De Witt county; S. F. Grimes, Judge.

Charles Mathis was convicted of murder in the second degree, and appeals. Affirmed.

Baker & Sumners, for appellant. R. L. Henry, for the State.

DAVIDSON, J.

Appellant, having been convicted of murder in the second degree, prosecutes this appeal.

A bill of exceptions was reserved to the charge of the court because it was upon the weight of evidence; that it failed to submit the issue of accidental meeting, was negative in its character, and upon a theory not presented by the testimony. A careful inspection of the charge does not support the criticisms urged. We think the charge a clear statement of the law applicable to the facts of the case.

There are no facts which show an accidental meeting between the parties. Appellant and deceased had just had some hot words. Appellant went off, procured another pistol, larger than that he was then armed with, returned, and called to deceased, and said: "I hear you have been looking for me. Here I am, ready for you, now." About 30 minutes elapsed between these meetings. The only inference to be drawn from this conduct of appellant was an invitation to the deceased to renew their difficulty, and notice of his preparation for such renewal. Whether his intention was to bring on a difficulty for the purpose of inflicting an ordinary battery, or as an excuse for killing deceased, were submitted as issues in the charge, as was the law of manslaughter.

It is insisted that the court erred in admitting the evidence of Lizzie Weathers, mother of Mandy Smith, that, two or three years prior to the homicide, appellant at Gonzales, threatened to kill "any man who fooled with Mandy Smith." The objections urged were that this testimony was immaterial; the threat was not directed towards nor said about deceased. The parties were rivals for the affections of the woman Smith, and had been for some time prior to the homicide, and her favors had been about equally divided between them; and, on the night of the homicide, deceased had been the cause of breaking up an appointment for continued favors between appellant and Mandy Smith. Previous to her removal from Gonzales to Cuero, appellant was the possessor of her affections, but very jealous of her. On the night of the homicide, and prior to the time of fulfillment of their appointment, appellant and said Smith were attending a...