Cooper v. State

• Decision Date: 22 November 1905
• Citation: 89 S.W. 1068
• Parties: COOPER v. STATE.
• Court: Texas Court of Criminal Appeals

89 S.W. 1068

COOPER v. STATE.

Court of Criminal Appeals of Texas.

November 22, 1905.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Corda Cooper was convicted of assault with intent to murder, and he appeals. Reversed.

E. T. Branch, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for assault with intent to murder, and his punishment fixed at confinement in the penitentiary for a term of five years. This is the second appeal. See Cooper v. State, 85 S. W. 1059, 12 Tex. Ct. Rep. 620.

The facts upon this trial are somewhat changed from those developed on the previous trial. In a general way the facts are that appellant was in the employ of Hanson, as was the assaulted party, Jones. Jones was the cook, and had charge of the pantry and kitchen. Appellant was sent to the pantry by Hanson, his employer, to secure some poison for the purpose of killing cockroaches. While in the pantry on this mission, Jones approached and ordered him out. What occurred in there is widely divergent under the testimony of appellant and Jones. Jones testifies that, when he saw appellant in the pantry, he asked him what he was doing. Appellant told him "it was none of his damned business." Jones then asked, "If it is none of my business, whose business is it?" Words were multiplied, until Jones became angry, grabbed a glass, and he states they rushed at one another; appellant having a plate in his hand for the purpose of getting the poison. As he approached appellant, Jones changed the glass from his right to his left hand, and struck appellant with his right hand on his face. Appellant retreated, saying nothing, and Jones went back into the kitchen. Some 15 or 20 minutes afterwards, appellant returned, having two big cups in his hand, walked into the kitchen, where Jones was grinding the meat for croquettes, called Jones a damned black son of a bitch, and said he intended to kill him. Jones grabbed the same glass he had previously, went around the table, and appellant backed away into the door. Just as he passed the door, he shot. The first shot took effect in the breast, the second in the head, the third in the hand, and the fourth in the leg, of Jones. When the last three shots were fired, Jones states that he was in the yard, had run out of the kitchen and was shot out in the yard by appellant, who was shooting through the door, and was protecting himself with the closet door. On the former trial it was shown that this witness stated that the time elapsing between the two difficulties was 2 minutes. This time he says it was 15 or 20 minutes. He was contradicted in several matters on this trial as to what his testimony was on the former trial. Jones denied throwing the cleaver at appellant as he stepped into the kitchen the second time. He further denies that he was approaching appellant with a large knife, and was within 10 or 12 feet of him at the time the first shot was fired. This knife was about 2½ feet long, had a sharp edge, and was the knife used in the kitchen to cut meat. Hanson testified that he was the proprietor of the hotel, and both of these parties were in his employ; that he sent appellant to the closet for cockroach poison. This witness contradicts Jones in several respects. This is the state's case in a general way.

Appellant's theory of the case is to the effect that when he entered the pantry Jones came to him and inquired what he was doing in there. Being informed that Hanson had sent him for cockroach poison, Jones ordered him out. Appellant asked what was the matter with him; that he was surprised at his conduct. Jones said, "Never mind what's the matter; you get out of here." Jones picked up a glass, and again ordered appellant out, stating, if he did not get out, he would knock him down. Appellant stepped outside the door, and told Jones he had better not hit him with that glass. He said, "I will hit you with it." Appellant said, "You had better not," and stepped into the hall. Jones came out, and as he came out changed the glass from his right to his left hand, and struck appellant over the right eye with his right hand a severe blow, knocked his head back, and raised a knot over the eye, which remained there for a day or two and caused him pain. As appellant retreated through the door, Jones threw the glass at him. He went thence into the office and got Hanson's pistol, and went back to secure the poison. This occupied about two minutes. As he went back he took the pistol, knowing that Jones had made threats, and he thought he might have trouble with him, and he took this pistol along in his pocket to protect himself. Just as he got to the middle door and swung it open, Jones discovered him from where he was in the kitchen. When Jones saw him coming through the door, he threw his cleaver at him, which brushed his pants leg. This cleaver is described as weighing about a pound or two, with a sharp edge, and used for cutting meat. Appellant drew his pistol and fired. He says he did not pull the pistol until Jones started in his direction. He had thrown the cleaver at appellant, and was approaching with a butcher knife about 2½ feet long, which was also used in chopping up meat. Appellant denies shooting at Jones in the yard. It seems Jones was about 10 or 12 feet from appellant, approaching him with the knife at the time the first shot was fired. One of the shots knocked the knife out of Jones' hands; that Jones then broke and ran to the woodpile, got a stick of wood, and appellant than ran. This is perhaps a sufficient statement, without going further into the details as to the cross-examination and contradictions occurring in the testimony.

Appellant criticises the charge of the court on cooling time, which is as follows: "You are instructed that, although you may find that defendant was struck by said Wade Jones, thereby causing pain or bloodshed, but if there had sufficient time elapsed thereafter, and before said shooting, in which time sufficient had passed for the defendant's passion or emotion to have cooled or subsided, and his reason to have resumed its sway, then and in that event you will not consider that portion of this charge relating to sudden passion and adequate cause; but otherwise, if you find that it had not, and in judging thereof you will consider the condition and temper of the defendant at the time and in connection with all the facts and circumstances in evidence." This charge is criticised for several reasons. The writer has always thought, and the rule has been so enunciated until the recent case of Franks v. State (Tex. Cr. App.; Austin term, 1905) 88 S. W. 923,...