Blalock v. State

• Decision Date: 25 January 1899
• Citation: 49 S.W. 100
• Parties: BLALOCK v. STATE.
• Court: Texas Court of Criminal Appeals

49 S.W. 100

BLALOCK v. STATE.

Court of Criminal Appeals of Texas.

January 25, 1899.

Appeal from district court, Franklin county; J. M. Talbot, Judge.

W. I. Blalock was convicted of murder in the second degree, and appeals. Reversed.

S. D. Goswick and Todd & Glass, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 15 years; hence this appeal.

Appellant complains that the court failed to give a charge on negligent homicide, and he assigns this as reversible error. The court did give a charge on murder in both degrees, manslaughter, and accidental homicide; and we think these charges of the court covered every phase of the case made by the testimony. This was a case of a husband killing his wife in a scuffle over a gun under circumstances which authorized him to take the gun from her. It is claimed, however, that, while he had the right to take the gun from his wife, he was negligent in the method of taking it from her. We recognize the rule on this subject to be as follows: "One who does an act lawful in itself, from which damage results to another, is not answerable for such damage, unless he has been guilty of negligence or other fault in the manner of doing the act." 1 Thomp. Neg. p. 47, citing Losee v. Buchanan, 51 N. Y. 476. Our statute is in accordance with this rule, which makes the doing of a lawful act in a negligent manner, with no apparent intention to kill, if death results, negligent homicide of the first degree. We have examined the record in vain to find any testimony suggesting negligence on the part of appellant in taking the gun from his wife. The testimony indicates that she and appellant were engaged in a quarrel; that she went out on the gallery from the room where they were, reached up, and got the gun, evidently for some mischievous purpose; she says to break it and throw it away, and he says he apprehended that she might commit suicide with the gun. When she got the gun, he rushed out on the gallery, seized it, and the struggle ensued. The testimony tends to show that in the struggle she got hold of the muzzle of the gun while her husband (defendant) had the breech, and it fired about the time he succeeded in getting it from her. She must have been very close to the muzzle when it was fired, as her clothes were set on fire, and the point of entry of the shot was not larger than a half dollar. Now, conceding that appellant had the right to take the gun from his wife, if he apprehended danger either to himself or to her, because she may have held the gun by the muzzle, it afforded no reason why he should release the gun, and turn it over to her. We fail to find, in his conduct in taking the gun from her, any evidence of negligence, requiring the court to give the requested charge on negligent homicide. The court did give a full charge on homicide by accident or misadventure. In this charge the jury was fully instructed that appellant had the right to take the gun from his wife, and if they further believed that, in taking same, the gun was accidentally discharged, and killed the wife of appellant, then to acquit him. And the jury was further instructed, in all of the court's charge on culpable homicide, to find that appellant intentionally shot deceased before they could convict him. This, it occurs to us, was the defense in the case, and was fully covered by the court's charge.

The only remaining question is, do the facts and circumstances contained in the record support the verdict of the jury? We have examined the record carefully, and we do not believe there is any material difference in regard to the circumstances attending the killing between the evidence of the state and the defendant. The state mainly relied on the dying declarations of deceased. We quote on this subject from the testimony of the witness Mrs. Aiken, who testified for the state, as follows: That she came to the house of defendant, where the shooting occurred, at the request of defendant, immediately thereafter. She says that, when she got there, she "found deceased lying on the bed, with a gunshot wound in her stomach, a little to the left side. I asked her how she felt, and she said she was going to die. I asked her how she came to get shot; and she said she and her husband [the defendant] was in the house quarreling, and she said she was afraid of him, and went out on the gallery, and got a chair, and got up in it, to get the gun, to shoot it off and break it; and, as she took the gun down, her husband came out there, and took hold of the gun, and they began to scuffle or struggle over the gun, and, in the scuffle over the gun, she was shot. I told her, if she killed herself, she could not go to Heaven, and she stated she did not shoot herself. I asked her what was the cause of her being shot, and she said, `Old Master Jealousy.' She said her husband accused her of being too intimate with a young man, and that she was innocent of the charge. About that time her husband (the defendant) spoke up, and said, `Molly, you are guilty, and you know you are guilty.' She said she was innocent, and that God knew she was innocent." Again this witness says: "When Dr. Green came, he told her if she had anything to say she had as well tell it; that he could do nothing for her. He asked her to tell how it was, and she said: `I guess I was to blame some. I got the gun first. I got it to shoot it off, and then to break it to pieces. I have not got anything against defendant.' The deceased lived about three hours, dying about 10 o'clock p. m. She said to Dr. Green, if she was able, she could tell him a great deal." The other state's witnesses who heard said dying declarations substantially agree with Mrs. Aiken, and we do not understand defendant's witnesses to materially vary from said statement. Witness Newberry stated: "The defendant went in the house with...