Castro v. State

• Decision Date: 17 April 1912
• Citation: 146 S.W. 553
• Parties: CASTRO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 553

146 S.W. 553

CASTRO v. STATE.

Court of Criminal Appeals of Texas.

April 17, 1912.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Frank Castro was convicted of manslaughter, and he appeals. Reversed and remanded.

Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter. His punishment was assessed at five years confinement in the penitentiary, the maximum for the offense of which he was convicted.

There are quite a number of reasons suggested why the case should be reversed, principally on the charge of self-defense and threats. From the evidence we gather that this trouble came up suddenly between the deceased Trevino and appellant over some financial matters and the repairing of a wagon. They seemed to have been in a good humor almost to the moment of the difficulty. The evidence upon which self-defense is predicated was given by appellant and his wife. He testified that he was acquainted with deceased, and had been for six months; had business relations with him. He also speaks of the business matter between them in which he was repairing a wagon for appellant. The details of that matter are unnecessary here to be related. During their conversation, however, with reference to the wagon, they became a little excited, appellant claiming that deceased was claiming too much money off of him and more than the wagon was worth, and this brought out some exciting conversation. They had been in a very friendly humor it seems up to this time. There were four parties present, and they all had some beer in appellant's house in which the killing occurred, where deceased had gone in company with two other parties. The conversation grew rather warm with reference to the wagon and financial matter, and deceased threatened, to use the language of the witness, to fix appellant. Appellant asked him to leave. Appellant testified then as follows: "When I saw that he was not leaving, I tried to get away, move away about one or two steps. I heard that he said, `You are a ____ mother, if you do not give me $15.' He grabbed me by the back of the neck. At the time I could not run away, because I had the counter in front of me and he grabbed me by the neck, slapped me right here (back of the head). He gave me a blow. He pulled me backwards. At the time that I had the hands in the drawer, where I had the money of my sales, where I had one revolver. The drawer opened by itself when I was grabbing the drawer, and he pulled me and I pulled the drawer, with one hand grabbed the pistol. He pulled me backwards. We both went down together, and turned me over one part to the other of the room. He knocked me down at the time that I wanted to take him from top of me. What I had in the hand was the pistol, and I tried to hit him with the point of it as if it was a knife, which was the defense which I had. At the time that I gave him a slap one of the bullets exploded. I became nervous. Another bullet went off. I dropped the pistol to the floor, crying, without knowing what had happened. I went out into the street and I met a man. I asked him what was that had been brought to me to my house, and he answered that he `knew what was going to happen.' I went to call a policeman, and brought him to my house and showed him what had happened, and that was all. I went to the policeman's house two times, and the last time I brought him to my house. Trevino, deceased, was the larger man of the two of us. I had made no effort to get to that drawer to get the pistol before the man struck me. At the time I got the pistol out of the drawer Trevino, deceased, was holding me by the neck. All what I tried was to defend myself. I did not intend to make any harm on him, and did not intend to harm him in any way." Being cross-examined, he said: "When I was with Trevino, I did not intend to shoot him. I did not intend to even shoot at him. The bullet exploded. Trevino was on top of me when the pistol went off. As to how Trevino was shot in the back of the head, he had his head right here [indicating to the chest], and I hit him with the pistol somewhere in the head. Trevino's head was on my chest. My money drawer is under the counter in the store. The fight took place in the back room. As to when Trail told me about that trouble, it was after leaving my revolver. I went out and met him at the door. That was after the man had been shot. Trail never told me anything before the shooting."

Mrs. Castro, wife of appellant, testified: That she saw both of the parties just before the shooting. She was standing at the west door in the hall, next to the kitchen, when she saw deceased strike her husband. Her husband tried to get away from him, and deceased grabbed him by the neck and hit him again. Her husband tried to get the pistol and did get it. They both fell down on the floor together. Her husband had the pistol in his right hand, and was trying to defend himself, and as he was trying to do that, hitting Trevino, the pistol went off. Her husband was hitting Trevino with the pistol when it went off.

1. The court charged upon self-defense, among...