Arnwine v. State

• Decision Date: 15 November 1905
• Parties: ARNWINE v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 39

ARNWINE v. STATE.

Court of Criminal Appeals of Texas.

November 15, 1905.

Appeal from District Court, Cherokee County; James I. Perkins, Judge.

Lee Arnwine appeals from a conviction. Reversed.

R. O. Watkins, S. P. Willson, and Johnson & Edwards, for appellant. T. E. Donley and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

On an indictment charging appellant with the murder of Lester Lattimore, he was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of 50 years; hence this appeal.

No exceptions were reserved to the rejection or admission of testimony, and the only questions that need be considered are those raised by exceptions to the charge of the court and in the motion for new trial. The court instructed the jury fully on murder in the first and second degrees and self-defense, but omitted to charge on manslaughter. Appellant assigns error, and bases his assignment both on the bill of exceptions to the action of the court failing to charge on the subject of manslaughter, and also the exception thereto in the motion for a new trial. The evidence shows that a grudge or ill-feeling existed between appellant and Leslie Lattimore, but there was none between appellant and Clyde Lattimore. On February 21, 1905, appellant returned from Jacksonville, passing by the house of deceased, Leslie Lattimore. As he approached the house Leslie and his brother, Clyde, were harnessing a pair of horses to a buggy. He rode on, and in a short time these parties passed him, and when they approached a gate which led into a field owned by deceased's father, Clyde, the younger brother, got out of the buggy, and opened the gate; the buggy, in the meantime, turning from the main road towards the gate, the gate being close to the traveled road. Appellant again approached them, and here the homicide occurred. The state's theory, supported by evidence, is that appellant began cursing and abusing Leslie Lattimore, and pulled his pistol, shot Leslie down, and then turned his pistol on Clyde, and mortally wounded him. After emptying his pistol, he loaded it again, and discharged six more shots at said parties. As stated, the state's theory presents a case of murder without any mitigating circumstances. Appellant himself testified, and he relates that as he approached the buggy, which was turned partially across the road, facing the gate, he undertook to ride around the rear of the buggy, between that and a tree, and as he rode past the side of the buggy, to get to its rear, deceased, Leslie, caught hold of the collar of his coat, pulled or jerked him off his horse; that he asked him what in the hell he did it for, and he told him to go to hell; that if he wanted anything he could get it, or words to that effect; that at this juncture, deceased (Leslie) seized a target rifle in the buggy, and was attempting to shoot him with it, and he then fired four shots at Leslie while in the buggy; that Clyde about this time approached him, mumbling damn something, ran his hand in his pocket, and he fired two shots at him; that subsequently he reloaded his pistol, and Leslie again attempted to get the target rifle, and he shot six more shots at him. Both bodies were found some 12 or 15 steps inside the field. Now from this statement of the case, was appellant entitled to a charge on manslaughter? As stated, the court gave a charge on self-defense. Might not the jury, as they evidently did, disregard altogether the testimony on that phase of the case, not believing it true, and yet, had they been permitted, have found appellant guilty of...