Collins v. State

• Decision Date: 20 February 1924
• Docket Number: (No. 7829.)
• Parties: COLLINS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 941

259 S.W. 941

COLLINS v. STATE.

(No. 7829.)

Court of Criminal Appeals of Texas.

February 20, 1924.

Rehearing Denied March 26, 1924.

Appeal from District Court, Coleman County; E. M. Critz, Special Judge.

Bob Collins was convicted of murder, and he appeals. Reversed and remanded.

J. B. Dibrell, Jr., of Coleman, for appellant.

Baker & Weatherred, of Coleman, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of murder, and his punishment fixed at 35 years in the penitentiary.

Appellant is a cripple, his back having been broken by the cave-in of a gravel bank in 1912, from which injury the lower part of his body was paralyzed, and he appears to have suffered pain and inconvenience from the loss of the normal functions of various organs. Following his injury came a separation from his wife, since which time he has been largely upon the charity of the county and of citizens of the town of Coleman. He had no home, but for quite awhile prior to this homicide had been occupying a tent provided for him by charity. His frequent use of liquor coupled with cocaine and drugs is testified to, and its effect upon his mind and health appears in the record. Deceased was a frequenter of appellant's tent, and numerous incidents of their gambling, their losses, and their differences also are in testimony. On the day of the homicide they, together with others, appear to have been out in the country from Coleman upon a trip in which both of them drank some whisky and appellant took cocaine twice. The defense in part was that he was irrational and irresponsible on said day, and a number of witnesses testified to that fact, detailing actions of his upon which they based their conclusions, such as pointing his pistol at women, pitching his watch and chain to a bystander, telling him he could have it, his language, demeanor, and conduct at the time of and before and after the homicide. It is made to appear that deceased removed from appellant's pistol its magazine, and that thereafter appellant demanded its return. Appellant while on the witness stand said that before they separated in the afternoon and before the killing he asked deceased again for the magazine of his pistol, and that deceased twisted his arm and cursed him, and told him if he asked him for that magazine again he would kill him. Shortly before the killing appellant went by the home of Hon. Walter Woodward, an attorney of Coleman, for the purpose of consulting him, but Mr. Woodward was away. Mrs. Woodward said that she knew appellant well and knew his voice but his voice sounded strange and she did not recognize him when he called. He wanted to talk to Mr. Woodward, and said he was going to kill a man. When he left, rolling in his wheelchair toward town, he was observed to go from one side of the walk to the other. When he reached the main street of Coleman he asked parties if they had seen Clabe May, but observed May about this time sitting on some crates of soda water bottles and wheeled his chair toward him. Various witnesses testified that when appellant approached deceased some words were spoken and the shooting ensued. Appellant testified that he knew deceased to be a man of dangerous and violent disposition and character, and that as he approached deceased he asked him again for the magazine to his pistol, and that deceased laughed and said he did not have it and started to get up, and, believing that deceased intended to carry out the threat to kill him, which had been made earlier in the evening, and being in the condition that he was by reason of the use of whisky and cocaine, and having an impression that his life was in danger at the hands of deceased whom he described as a desperate man like himself, he fired. Appellant testified that his mind at that time was in such condition that he had no clear recollection of what occurred, that it seemed like a haze to him, and that it was all a matter of impression and belief. Other witnesses who saw the occurrence testified that at or about the time of the first shot, and they would not say it was not before, deceased was in the act of getting to his feet.

In this condition of the testimony appellant excepted to the failure and refusal of the learned trial judge to submit the law of self-defense based on threats and an act on the part of deceased evidencing an intention to execute such threat. Appellant also testified that once before deceased had threatened to jerk him out of his chair and stamp him on the sidewalk. It is well settled in this state that one accused of murder may defend on the ground of threats made by the deceased, supported by proof that at the time of the homicide the deceased by some word or act or both indicated a present purpose to carry such threat or threats into execution. Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 335; Williams v. State, 84 Tex. Cr. R. 280, 221 S. W. 287; Singleton v. State, 86 Tex. Cr. R. 401, 216 S. W. 1094; Lewellen v. State, 90 Tex. Cr. R. 588, 236 S. W. 987. When reliance upon such proposition finds support in the testimony, the issue is for the jury under appropriate instructions, and the courts have often been cautioned not to trespass on the province of the jury, but to submit same to them, coupled with apt instructions to the effect that, in determining the sufficiency of the act done to cause belief that the threat was about to be executed, the matter should be viewed from what the jury believe from all the evidence to be the standpoint of the accused at the time he committed the homicide. From the testimony of the sheriff who found a magazine in a position which indicates that deceased had it, which magazine...