Butler v. State

• Decision Date: 01 February 1928
• Docket Number: (No. 11109.)
• Citation: 3 S.W.2d 101
• Parties: BUTLER v. STATE.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 101

BUTLER v. STATE.

(No. 11109.)

Court of Criminal Appeals of Texas.

February 1, 1928.

Rehearing Denied March 7, 1928.

Commissioners' Decision.

Appeal from District Court, Limestone County; J. R. Bell, Judge.

Hugh David Butler, alias Hoptoe Butler, was convicted of murder, and he appeals. Reversed and remanded.

Ira Lawley, of Groesbeck, for appellant.

C. H. Machen, of Mexia, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, murder; penalty, 99 years in the penitentiary.

Appellant killed Lester Bolton. A few days prior to the killing appellant had a fight with Milford Long, brother-in-law of deceased. Appellant introduced evidence of communicated threats made by deceased against him to a third person when he heard of this fight; also that Milford Long, his brother Ben, and deceased, all three, hunted for appellant on the day of the homicide, found him at a carnival stand, from whence appellant ran to an adjoining stand, pursued by the three, and where he was attacked by Ben Long with a scantling, at which time he shot Ben Long, and almost immediately thereafter shot deceased. The issue of manslaughter was overwhelmingly raised by the evidence.

In charging upon this issue the court said in part:

"In determining the adequacy of the provocation, * * * if you find that by reason of anything deceased did at the time, or by reason of anything deceased and Ben Long did at the time, or by reason of any threats made by deceased, or by Ben Long, made to the defendant at the time," etc.

This charge restricted the jury's consideration to acts and threats of Ben Long or deceased "at the time" of the killing. It eliminated a consideration by the jury of a joint attack by the three, or at least the joint action of the three above set out, and also eliminated previous threats made by deceased to third persons and thereafter communicated to appellant.

This charge was unduly restrictive under the facts of this case and has been many times condemned. Brookreson v. State, 92 Tex. Cr. R. 67, 242 S. W. 234; Norris v. State, 42 Tex. Cr. R. 567, 61 S. W. 493; Gant v. State, 55 Tex. Cr. R. 291, 116 S. W. 801.

If the facts showing adequate cause are collated, they should be correctly stated. Wheeler v. State, 54 Tex. Cr. R. 51, 111 S. W. 1022; Branch's P. C. § 2048. Especially is it error to mention a single attack when the evidence raises the issue of a joint one, and which further restrict the jury's consideration to matters happening at the very time of the homicide when there are in evidence matters happening prior thereto which might under all the facts in evidence constitute adequate cause. Miles v. State, 18 Tex. App. 170; Branch's P. C. § 2049. It is always dangerous to give a charge attempting to group the facts showing adequate cause in a manslaughter case.

A bill of exception appears in the record to the court's refusal to permit the witness Molin to testify to a purported res gestæ statement of Milford Long to the effect that they (meaning himself, Ben Long and deceased) went out there "to get appellant, but he beat them to it." If the proximity of time and place and such circumstances as showed the spontaneity of this statement had been shown in the bill, it would present a serious question, but the bill is deficient in these respects and will not be considered. It is qualified in such manner as to show no error, but the qualification was properly excepted to by appellant. We again call all trial court's attention to the law which forbids our consideration of a qualification thus excepted to. Rochelle v. State, 107 Tex. Cr. R. 79...