Cavaness v. State

• Decision Date: 10 June 1903
• Citation: 74 S.W. 908
• Parties: CAVANESS v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 908

CAVANESS v. STATE.

Court of Criminal Appeals of Texas.

June 10, 1903.

Appeal from District Court, Mason County; James Flack, Special Judge.

Joe Cavaness was convicted of murder, and he appeals. Reversed.

M. D. Slator and W. C. Linden, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 35 years.

The twelfth ground of appellant's motion for new trial is that the court erred in failing to charge on manslaughter. Appellant insists that his testimony raises the issue of manslaughter. After testifying to various and sundry threats and acts of violence on the part of deceased towards him, appellant relates the circumstances of the killing, as follows: "Deceased was plowing with two mules and two horses, and I plowed with two horses to a little plow. He plowed in front, and I followed him, both plowing the same land. We ate dinner together. Neither of us spoke a word during the day until we went to quit that evening. We ceased work about 4 o'clock. I had turned one of my horses loose, and put the saddle on the other, and then went to help deceased. While he was unharnessing his horses I took the mules to the wagon, and had put the breast yoke up, and tied the lines back to the top of the front wheel on the left-hand side, and had gone under the lines to hitch the inside trace, and deceased got through with his horses, and came in behind the other mule on the other side of the tongue to hitch the other inside trace, and we came right close together. He said, `You say you did not knock that horse's eye out?' And I said, `No, I didn't.' He then said, `You are a God damned son of a bitch of a liar.' I said, `Jack, God damn you! you can't talk to me that way.' And he replied, `God damn you! I will show you whether I can or not;' and he reached down to his right side with his right hand, and drew a pistol and threw it down in my face, and I knocked it up with my left hand and shot him with my right. Just about the time I knocked the pistol up, it went off over my head, and immediately, almost at the same time his pistol went off, I fired and shot him. He turned and ran off, with the pistol in his hand. It was a blackhandle pistol—looked like a rubber handle—blue or black barrel. I saw him until he went behind a small thicket about thirty or thirty-five yards from the wagon. I then went on around there, and he was lying on his back, and the pistol was six or eight inches from his right hand." This evidence does not raise the issue of manslaughter, but appellant's testimony, if true, merely shows self-defense. This the court properly charged upon.

Appellant complains of the following portion of the charge of the court: "In this case, the state having introduced in evidence the declarations of defendant for the purpose of proving the act of the killing, then everything defendant said with reference to why and how he killed deceased becomes admissible as testimony, and the declaration of defendant that he was bound to kill deceased is to be taken as true, unless the state has proven the falsity of this declaration; and, if the state has failed to satisfy you that such declarations are false, then you will acquit defendant. But in this connection I further...