Cottom v. State

• Decision Date: 26 April 1922
• Docket Number: (No. 6823.)
• Citation: 240 S.W. 918
• Parties: COTTOM v. STATE.
• Court: Texas Court of Criminal Appeals

240 S.W. 918

COTTOM v. STATE.

(No. 6823.)

Court of Criminal Appeals of Texas.

April 26, 1922.

Appeal from District Court, Bell County; M. B. Blair, Judge.

Bertha Cottom was convicted of murder, and she appeals. Reversed.

Henry A. Yeager, of Belton, and W. C. Taylor, of Waco, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 20 years.

The defensive theories are reflected by the testimony of the appellant. She and her husband resided upon the farm of Mr. Hodge. On the day previous to the homicide, they had purchased some groceries and left them at the home of Hodge. She requested her husband to go for the groceries. He answered her in an ill-tempered manner, but started in the direction of Mr. Hodge's house, saying that he was going for the groceries, and she followed him in order that she might aid him. While waiting for the groceries, deceased went to the garage, where he was called by some friends, and she called to him and asked him if he was not going home, and he said: "Oh, make me go home if you think you can." After some colloquy upon the subject, she, insisting upon the deceased going home, and he putting it off in an ill-tempered manner, said, "If you put your hands on be again, I will knock your brains out." She again approached, and he began beating her, and she got his thumb in her mouth and held it with her teeth. He called upon a friend, who was present, for his knife, but did not obtain it. She then said: "Come on, let's go home," and he answered: "I am going to kill you this minute." She started on with him when he said:

"There is not any use of me pulling you over these rocks this way, and you sick. I am in the wrong; you turn me loose, and let me go back and get the groceries."

She promised to comply with this request if he would not bother her or whip her, but upon her releasing his thumb he knocked her down with his fist and began choking her. Mr. Hodge came, and made them stop fighting. The deceased said that he was going to kill her for biting his thumb the way she had. She was sick and went home, but returned to get some snuff and other articles, taking a pistol with her for protection. After getting the articles, she started to her home, but, on looking back, saw the deceased coming behind her with a box of groceries on his shoulder. He overtook her and said:

"You bitch, you bit my finger that way, and when I get through with you, you will not be able to bite another man's finger."

She requested him not to beat her any more, but he said that he was going to kill her. He set the groceries down, and started towards her. She backed off, protesting against his whipping her any more, and he said:

"Well, you must have that little old gun."

Then he reached down and got a rock, and when he drew back to throw it, she shot the pistol and broke and ran. She claimed that the deceased had whipped her on various previous occasions, and that she had separated from him, but he whipped her until she came back.

Each of the parties were about the same age — something over 30 years. The deceased weighed about 20 pounds more than the appellant. She said:

"I don't know whether Lug [deceased] could see the pistol or not, but I saw that big white rock he had. The rock looked to me to be as big as my two fists. He drew his right hand back and told me he was going to kill me. I was in pain at that time. At the time I shot him, he didn't put his hand on me, but I kept backing out of his reach."

She thought he was going to carry his threats into effect.

According to the version of the state, as developed by the testimony of the witness Hodge, the homicide took place between his house and that of the appellant and her husband, at a point about 100 yards distant from the house of Hodge. Appellant and deceased went for the groceries, when some one called the deceased to the garage. Appellant called him to come back, and said that if he did not come she would come after him. The deceased said:

"If you think you are big enough, come on."

She said she thought she was, and the witness heard the deceased beg her to turn him loose. They were in the habit of fighting. The witness went into the house, and changed his clothes, and when he went out to where they were appellant had the deceased's finger in her mouth. When the witness Hodge arrived appellant turned the deceased loose and he said:

"Go home and stay home if you don't let me alone."

She went home, and the deceased went after Hodge's cows, and while he was gone she came back and asked where the deceased was. She was told that he had gone after the cows. After returning he fed the mules and then got the groceries and carried them on his back. The witness heard appellant and deceased mumble to each other as they walked toward their home. Soon thereafter a shot was fired, and he heard the deceased exclaim:

"Come and get me; Jane has shot me."

There is testimony that the appellant had stated to others that she intended to kill the deceased. The court instructed the jury on the law of provoking the difficulty. The sufficiency of the evidence to raise this issue is questioned by the appellant, and she complains of the manner in which it was submitted. We copy from the charge on the subject:

"If you believe from the evidence, beyond a reasonable doubt, that the said Bertha Cottom and Lug Cottom had, prior to the time of the shooting of the deceased by the defendant, if she did shoot him, had a personal difficulty, and if you further believe from the evidence beyond a reasonable doubt that the said Bertha Cottom left the deceased upon being ordered to do so, and that she later returned with a deadly weapon, and renewed the difficulty, if there was any difficulty, and intentionally sought and brought on the alleged difficulty with the said Lug Cottom with the intent to kill him, and that in said difficulty the said Bertha Cottom shot and killed the said Lug Cottom, then and in that event the said Bertha Cottom would forfeit her right of self-defense, and would be guilty of either murder or manslaughter as those terms have heretofore been defined to you in other portions of this charge."

In writing the paragraph quoted, the learned trial judge, in our opinion, omitted an essential element in the law of provoking the difficulty. To deprive the appellant of the right of self-defense under the evidence in question, it was essential that her words or conduct be reasonably calculated to have provoked the deceased to attack her, and that, responding to such words or conduct, he...