Anthony v. State

• Decision Date: 15 June 1910
• Citation: 136 S.W. 1097
• Parties: ANTHONY v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 1097

ANTHONY v. STATE.

Court of Criminal Appeals of Texas.

June 15, 1910.

On Motion for Rehearing, May 10, 1911.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

B. M. Anthony was convicted of manslaughter, and he appeals. Affirmed.

Martin, George & Johnson and Crawford, Muse & Allen, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This appeal is prosecuted from a conviction had in the district court of Erath county on January 31st of this year, finding appellant guilty of the offense of manslaughter and assessing his punishment at confinement in the penitentiary for a period of five years.

The record presents a number of questions of great difficulty, and in order to make the opinion understood it will be necessary to make a somewhat detailed statement of the issues arising on the trial and to state some of the evidence in relation thereto. Appellant and Robert L. Snider were neighbors, both farmers, and lived not far apart, in Erath county. The deceased was a somewhat younger man than appellant, and a very stout, athletic man, weighing some 175 pounds. Appellant was about 46 years of age, weighed about 135 pounds, and was somewhat disabled in his left hand, and was not nearly so stout as deceased. The evidence indicates there had been some unpleasantness between the parties prior to the day of the fatal meeting, which was of such a character that it had not wholly interrupted their intercourse with each other. From the record it appears that on the morning in question appellant passed by the house of deceased, going to the house of one Sanders, with the intention of going with Sanders to Stephenville, and the evidence showed that the road from appellant's residence to Sanders' house went by the home of deceased. The road running by appellant's place was in a general east and west direction; deceased's house being on the south side of the road. Arriving there about 8 o'clock in the morning, it appears by the testimony of Calvin Snider, a son of deceased, that appellant spoke to him, and told him to tell his father to keep his calves out of his field, and that if he did not there was going to be serious trouble, and that he then asked if deceased was at home, and being answered that he was and whether he wanted to see him, he said he did, and to tell him to come out. Young Snider says he told his father that appellant wanted to see him, and that his father walked out to the gate with a cotton picking sack in his hand, and that the parties stood there and talked; that after they had talked for some little time appellant said to deceased, "Are you ready?" and that his father said, "Yes," and that they then walked down the road, side by side. He also says when appellant first came to the house that he had open a large knife in his hand, and that he had this knife in his hand open, as he and his father walked off down the road towards the west. He saw them no more until after the killing.

Mrs. Snider was introduced, who testified that a short time after appellant and her husband left the gate that she stepped out into the front yard, and just as she got out she saw her husband fall or sink down in the road, and at the time saw appellant break and run and call a man who was in front of him, but at the time she thought nothing of the incident.

Lee Riley testified that he saw the parties on the morning in question standing at the gate, and that when he got within 50 yards of them they both started off, walking west down the road; that just about the time they left the gate he saw appellant put his hand in his pocket and get out his knife, and hold it in his hand as he walked along, appellant on the right and Snider on the left; that appellant's hand, in which he carried the knife, was down in the usual manner of carrying one's arm, but a little out from his coat, and, as it seemed to him, a little to the back. He says he overtook these men about 100 yards west of Snider's house, and they turned out of the road a little, and about the time he got to them his mules got scared at something, and by the time he got them stopped he had passed the men a little, and at this time appellant was next to the wagon and deceased slightly in front of him; that as he stopped he asked them what the trouble was, when deceased replied that appellant was just blowing around, and then said if he would put up his knife he would show him how quick it was done; that he told them there was no use to have any trouble, and drove on a distance of about 100 yards, when he heard some one holloing, and looked back and saw appellant coming up the road; that, when appellant came up, he said he wanted him and Kerr, a neighbor, to go down and see about deceased; that he drove over to the fence and hitched his team, and appellant said to him, "You keep your head; I will want to use you for a witness."

In the conversation this witness says that appellant told him that he had hurt Snider after Snider had hit him with a club, but that he did not know how bad he had hurt him; that he had tried to hurt him, and for them to go and see. He also says, as he passed these men, they were standing on the side of the road, appellant being nearest the wagon and facing south, and still having a knife in his hand, holding it back behind him in what he would call a striking position, and that they were standing close enough to touch each other, deceased facing north and appellant facing south, and that deceased had nothing in his hand when he saw them; that right at their feet, but whether just between them or a little to one side he did not remember, there was a pretty good sized stick, some 3½ or 4 feet in length, He testified when appellant came up that there was blood on his face and clothes, and that his hat was torn on the crown and brim. He also testified that, when he went to where deceased was, he saw lying some 20 feet from where the two men were standing when he passed them in the road the large stick which he had mentioned before, lying in the middle of the road not far from Snider's body. It also appeared there was a smaller stick lying on, and rather between, Snider's legs. It was shown by other witnesses that this stick had been somewhat burned and had dirt and trash on it, and there was no evidence of any dirt or anything else being on deceased's hands. In a general way, and as far as, in view of his absence, could be expected, Anthony Kerr corroborates the witness last named. The knife referred to was shown to have been a one-bladed knife, with a blade about four inches long, and the point of the blade, the evidence tends to show, was broken during the difficulty, leaving the remaining part of the blade about three inches in length and about three-quarters of an inch in width.

It was shown more specifically by the testimony of Bates Cox that the small stick lying between deceased's legs had been burned and charred at one end, and that the small end of the stick was near what is called the crotch of deceased's trousers. He says he examined the hands of deceased carefully, and there was no smut on them like that on the burned stick. The evidence showed that there were four wounds on the body of deceased, two in the chest, one in the abdomen, and one in the small of the back. The two in the breast were superficial and did not extend into the cavity, and were not serious. The wound in the small of the back was a stab wound, about half an inch to the right of the middle line of the back, and about two inches deep, extending to and striking the body of the spinal column. The wound in the abdomen was just above the navel, about an inch and in direct line with it, and was the fatal wound.

J. D. Biggs was introduced by the state, who testified that he had a conversation on the morning of the killing, about 9 o'clock, with appellant, and that appellant asked him out to one side of the house and talked to him privately in regard to his knife. He stated the knife he had was a large one, and that some of his friends or neighbors thought that he had better turn in the smaller knife to the officers when they came, and asked him what he thought about it. He says he told him he would turn in the knife he had, and that appellant said in substance that that had been his own view of the matter. This witness makes the following statement as to what appellant said touching the facts leading up to the difficulty: "That he was going to town that morning, and in doing so went by Snider's house; that Snider's calves had been bothering him, and that when he got even with Snider's house he saw Snider's boy in front of the house, and told the boy to tell his father that he wanted him to keep his calves out of his cotton. He said the boy told him his father was in the house, and asked if he (defendant) wanted to see him, and that he told the boy he did; that Snider then came out, and that he then told Snider to keep the calves out of his field, and that then Snider seemed to get mad and said that he (Snider) could whip him. He said that he told Snider then that if he would go away from the house, or down the road, he did not think he could do it, or that if he would go away from the house he did not think he could whip him. They then went on down the road, he said, and there Snider knocked him down with a club before he got his knife out of his pocket, and then said he had to do what he did. This is as near as I can repeat what defendant told me in regard to the difficulty between himself and the deceased."

On cross-examination he makes the statement in reference to the agreement to fight rather stronger. This statement is as follows: "Defendant repeated to me his conversation with Snider out at the latter's gate. I do not recall that he said to me that Snider said, `Damn you; I can whip you.' He did, however, state that Snider said he could whip him, and that he then told Snider that if he (Snider) thought he...