Allen v. State

• Decision Date: 20 October 1920
• Docket Number: (No. 5904.)
• Citation: 224 S.W. 891
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

224 S.W. 891

ALLEN v. STATE.

(No. 5904.)

Court of Criminal Appeals of Texas.

October 20, 1920.

Appeal from District Court, Titus County; J. A. Ward, Judge.

Yourea Allen was convicted of manslaughter, and he appeals. Affirmed.

T. C. Hutchings and J. M. Burford, both of Mt. Pleasant, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for manslaughter, and punishment fixed at confinement in the penitentiary for five years.

The evidence shows that deceased had shot a hog belonging to appellant or his wife, and had paid a sum of money to the appellant because of the injury. A controversy arose over the ownership of the hog, the deceased asserting that title passed to him by reason of the payment, this interpretation of the contract being combated by the appellant. Deceased went to the home of the appellant with his stepson and a wagon, and sought to obtain possession of the hog. While there the homicide took place, deceased receiving two wounds from a shotgun, the infliction of which by the appellant is conceded. The evidence is in sharp conflict touching the transaction at the moment the shots were fired.

The evidence introduced by the appellant was to the effect that the deceased came to the home of appellant while the appellant was out in his field, and demanded the possession of the hog from appellant's wife, and, being denied, that the deceased attacked her with a stick, which was a deadly weapon; that she fled, and the appellant, attracted by her screams, returned and fired the two shots in her defense. The state's evidence negatived any attack by the deceased or the possession of any weapon, and goes to show that the appellant shot the deceased while he was helpless and begging for his life, the first shot having been fired while the deceased was in the house, where he had been forced to go at the point of a gun, the other shot being fired while he was fleeing.

The complaint in the first bill is that appellant desired to ask a witness on cross-examination the question, "Well, how'd you come to get that stick?" to which the witness would have answered that appellant had told him when he received it that the deceased had assaulted the wife of the appellant with it. This declaration might have been admissible if made under circumstances bringing it within the rule of res gestæ. That it did come within that rule is not shown.

The relevancy of the testimony which the appellant sought to elicit to the...