Clark v. State

• Decision Date: 28 January 1925
• Docket Number: (No. 8881.)
• Citation: 268 S.W. 465
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

268 S.W. 465

CLARK v. STATE.

(No. 8881.)

Court of Criminal Appeals of Texas.

January 28, 1925.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Eugene Clark was convicted of murder, and he appeals. Reversed and remanded.

Wm. H. Hanson, of Tyler, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 99 years.

Appellant shot and killed his mother-in-law, Emma Ross.

The principal legal question arises on account of the refusal of the request of the appellant that the jury be instructed that it was his right, for his own protection, to arm himself and go to the house of the deceased to request his personal property which had been taken from his home without his consent.

Appellant was a negro about 21 years of age. He had been married to a young woman, the daughter of the deceased, about 6 months. A short time after the marriage, upon the suggestion of the deceased, they moved to her house. A separation took place and the appellant was ordered to leave by the deceased and to refrain from returning to her house. A reconciliation followed and the appellant and his wife took up their abode at the home of Will Davis. According to the appellant's testimony, on the day of the homicide, following his custom, he left home early in the morning, parting from his wife on friendly terms. Before noon his wife came to his place of work and told him she was going to leave him. Soon after, upon going to his home, he found that his wife and an express man were in the act of moving his household effects. He forbade this, and another reconciliation took place, his wife getting in the car and returning with appellant to the home of Will Davis. Upon reaching there, the deceased appeared and told her daughter that she had come to see why she had not returned. Appellant and his wife then parted, he went to his work, which was driving a delivery wagon for a grocery store, leaving his wife at home. Upon his return at the dinner hour he found his household effects removed. He went to the home of the deceased where he found his wife, who stated that the deceased had persuaded her to stay at her house. Appellant then said that he wanted his part of the "things"; that he would put them out in the street and would later come and get them. His wife objected to this and the deceased appeared upon the scene with a stick of wood in her hand with which she struck the appellant. A scuffle ensued between appellant and deceased, and she was about to hit him with the stick when his wife said to her, "Mama, don't hit him with the stick." Deceased, with an epithet, said, "I will kill him," and went into the room and procured a gun. The wife told her mother not to shoot. She repeated the statement that she would kill him. He took hold of the gun to wrest it from her possession. While the gun was pointed at him, she pulled the trigger but the gun did not fire. She then unbreached it and discovered that it was empty. She went for ammunition and the appellant fled to the home of Will Davis. He afterwards returned, bringing a gun with him. He testified that when he reached the house, the deceased came to the door with the gun in her hand, Just as she threw up the gun, he fired at the door. She then shut the door and locked up the house. Appellant retreated beyond the range of the gun, telling her, however, that if she would put his things out of the house, everything would be all right. She rejected this proposal, but finally told him to come in and get his things. On entering the house and seeing her at the door, he fired, thinking there was a ruse to kill him.

A witness for the state testified in substance that the deceased was...