Cornwell v. State

• Decision Date: 23 November 1910
• Citation: 134 S.W. 221
• Parties: CORNWELL v. STATE.
• Court: Texas Court of Criminal Appeals

134 S.W. 221

CORNWELL v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1910.

On Motion for Rehearing, February 8, 1911.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Burnett Cornwell was convicted of manslaughter, and he appeals. Affirmed.

Mayfield & Word and C. M. Kay, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This appeal is prosecuted from a conviction had in the district court of Bosque county on the 11th day of April of this year, in which appellant was found guilty of manslaughter, and his punishment assessed at confinement in the penitentiary for a period of three years.

The evidence shows that appellant and the deceased, John Scarborrough, were before the night of the fatal difficulty good friends. They were both young men; the appellant being the younger of the two and much the smaller of the two. The facts in the case briefly show: That on the 21st day of December, 1909, the parties attended an entertainment at the house of one Latham. That those present as guests were in one room of the house which was lighted by one lamp. That in the adjoining room Mr. Latham and some members of the family were seated, in which room there was an open fire. That during the evening some one blew out the light. That it was relighted, and after this appellant blew out the light as often as twice and probably three times. That after he had done so the first time the deceased protested against the light being extinguished, though in no particular words of anger, and without speaking directly to appellant. Appellant persevered, however, and blew out the light again and probably twice after such protest. That during this time one of the witnesses testifies that appellant took his knife from his pocket and opened it, and returned same thus opened to his hip pocket. Another witness speaks of the fact that appellant while in the house took his knife from his pocket, but it does not appear from his testimony distinctly that at this time the knife was open. Soon after the light had been put out the last time, the appellant asked Scarborrough to come out doors. Scarborrough went out doors with him, and they went just outside the yard fence where a quarrel ensued between them, in which, among other things, appellant, according to the testimony of some of the witnesses, said to Scarborrough, if he did not like what he said, to get on him. That at this juncture Scarborrough struck him with his fist and knocked him partly down, and was standing over him in this position, striking, or striking at, him. The evidence further shows that while in this position appellant with his knife cut Scarborrough on the legs, one of the wounds severing the femoral artery, from which he bled to death in a few minutes.

The court submitted the issues of murder in the first degree, murder in the second degree, and manslaughter. He also gave a charge on the doctrine of provoking the difficulty, and further instructed the jury, at the request of counsel for appellant, that, if they found from the evidence that defendant cut and stabbed the deceased and thereby killed him; still they should not find him guilty if they believe at the time he cut and stabbed the deceased he did not intend to kill him, and, if they had a reasonable doubt of this fact, they should give him the benefit of such doubt, and find him not guilty. The court also gave a special charge modifying a special instruction requested by counsel for appellant to the effect, in substance, that if they believe from the evidence that the knife which had been introduced in evidence and the manner of its use as shown by the evidence was not a deadly weapon, as defined in the main charge of the court, or if they have a reasonable doubt thereof, they would find the defendant not guilty. The court did not charge on the issue of aggravated assault, and the failure of the court so to do is perhaps in the state of the record the most important and material question arising in the case. In this connection it should be stated further that appellant, who testified in his own behalf, said that at the time he struck deceased he had no intention of killing him; that he was in such position that he could have killed him; that he could have struck him about the throat, near the heart or other vital portions of the body, but his intention and idea was to so wound the deceased as to make him let him alone.

1. The evidence showed that the homicide occurred about 10 o'clock at night of the 21st of December, and that, soon after the encounter between the parties, appellant went to the place where he was staying and remained there alone, and had no information touching the death of appellant until the next morning. In this state of the case appellant proposed to prove by his own testimony and that of one Benton that, when so informed of the death of deceased, he stated that he was sorry he was dead, and that he did not intend to kill him. This was objected to by the state, for the reason that it was too remote, was not res gestæ, and was a self-serving declaration. The evidence shows that the statement was made some 10 hours after the homicide and by the defendant at the place where he was at the time staying, some mile and a half from the place of the killing. We think it too clear for discussion that this testimony was not res gestæ, but was both hearsay and self-serving, and that the court did not err in excluding same.

2. The charge of the court on the issue of provoking the difficulty is complained of in this language: "The trial court committed error in the twenty-first paragraph of the main charge wherein he attempts to apply the law of provoking a difficulty. The same is not the law, is not clear, and had the effect and was calculated to mislead the jury." We think these complaints are so general in their character as not to require a review by this court of the matter attempted to be presented. The motion does not point out in what respect the charge was not the law, wherein it was not clear or how and in what manner it was calculated to mislead the jury. The particular paragraph set out in the brief of counsel for appellant has been condemned by this court, but we are not sure that, taking the charge of the court altogether, even if the motion, with sufficient directness, challenged the charge, it would be ground for a new trial. But it seems clear under the authorities that the complaint is so general as not to be sufficient to require a review at our hands. Pollard v. State, 125 S. W. 390; Phillips v. State, 128 S. W. 1100; Roma v. State, 55 Tex. Cr. R. 344, 116 S. W. 598; Holmes v. State, 55 Tex. Cr. R. 331, 116 S. W. 571; Duncan v. State, 55 Tex. Cr. R. 169, 115 S. W. 837.

3. The next two matters presented as grounds for new trial may be considered together. In the sixth paragraph of the motion it is urged that the court committed error wherein he charged on the means by which the injury was committed and the manner of its use. It is claimed and urged that the intent with which the wound was inflicted in this case was a most vital issue in the case to appellant, and that the court committed error when it charged the jury that, if they believed the manner in which the instrument was used was reasonably calculated to do serious bodily injury, then the law presumes that such was the design and intent of the party committing the injury. In the eighth ground of the motion for new trial, it is averred that error was committed, in that the court should have charged the law of aggravated assault, because, as claimed, all the facts show that, if an offense was committed at all, it was of no higher degree than aggravated assault. We think the charge of the court with reference to the presumption from the use of the weapon in question, taken in connection with his definition of a deadly weapon and the special charges given by the court at the request of counsel for appellant, have sufficiently presented this question. On this subject the court instructed the jury as follows: "You are instructed that the instrument or means by which an injury is committed is to be taken into consideration in judging of the offense, if any, of the party offending. If the instrument or means be one not likely to produce death, it is not to be presumed that death was designed, unless it further appears from the manner in which it was used and the circumstances surrounding and known to the defendant the intention to kill evidently appears. Where a homicide occurs under the immediate influence of sudden passion, and by the use of means or an instrument not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appears that there was an intent to kill. Every person is presumed by law to intend whatever would be the reasonable and probable result of his own act and the means used by him, and when an injury is committed and the instrument or means used (or the manner in which it was used was reasonably calculated to do serious bodily injury), and this evidently appears from the evidence, then the law presumes that such was the design and intent of the party committing the injury; but, on the other hand, if the instrument or means used is one not likely to produce death, it is not presumed that death was designed, and, if in this case you believe such to be the facts and the manner in which it was used was such that the evidence does not show an evident intention to kill, then you will consider such facts in connection with the defendant's plea of self-defense." The court defined the term "deadly weapon" in the following language: "A deadly weapon is one which from its size and character and the manner in which it is used is likely to produce death or such serious bodily injury as may probably result in death." That the issue of aggravated assault arose in the case under all the facts we are convinced. It is...