Darnell v. State

• Decision Date: 30 March 1910
• Citation: 126 S.W. 1122
• Court: Texas Court of Criminal Appeals
• Parties: DARNELL v. STATE.

126 S.W. 1122

DARNELL v. STATE.

Court of Criminal Appeals of Texas.

March 30, 1910.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Mat Darnell was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

McGrady & McMahon, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment being assessed at two years' confinement in the penitentiary.

Without undertaking to go into a detailed statement of the facts, which covers something like 40 pages, a brief summary of this part of the record may be thus stated: Appellant and the assaulted party, Master, were neighbors. Appellant's stock on several occasions strayed into Master's crops, and were taken up by Master, and pay was demanded for these depredations. These matters continued until they engendered ill feeling between the parties. It is also shown that upon one occasion the rainfall had been quite heavy, and an embankment had caused the water to be dammed up so as to flood a small piece of Master's ground covered with alfalfa. To relieve his land of the overflow, Master opened the embankment and let the water off. It ran onto and over appellant's land. This also fomented trouble, resulting in a personal encounter, in regard to the facts of which encounter there is a divergence. The state's theory, through the evidence of Master, was that appellant raised the disturbance, had a knife at the time, and made an attack upon Master with it, cutting his clothes in two places, whereupon Master struck appellant two or three blows with a hoe which he had in his hand, and with which he had opened the embankment, breaking the hoe handle in striking appellant. Master accused appellant of having instituted prosecution against him for theft of chickens from a neighbor whose name was Word. Master testifies that the taking of the chickens was to play a joke on Word; that he and another party in fact did go to the hen roost of Word and get the chickens, and were detected and turned the chickens loose; that the case was not prosecuted in the court. There was evidence that Master had made threats against appellant, some of which were to the effect that he and two other parties had made up a sufficient amount of money so that one of them could give appellant a whipping, and the money would go to pay the fine of the party who did the beating. Another witness testified that a short time before the shooting, which was the cause of this prosecution, probably 10 days prior, appellant was at the house of the witness Smith and got on his horse and rode away. About 15 or 20 minutes after appellant left, Master came up to the house of this witness, and asked the witness if she saw that old coward (referring to defendant) run when he was coming up. Witness told him she saw him leave. Master then said the next time he got hold of him (referring to defendant) it would not be with just a hoe handle. On the occasion of the difficulty, which formed the predicate for this prosecution, appellant had gone to a store some 700 yards distant from his residence for the purpose of purchasing some quinine and a small amount of rock candy, that he was sick, threatened with pneumonia, had a very bad cold, and that the quinine was to be used on account of said sickness. He had just made the purchase preparatory to leaving the store, when Master came in, walked up to the stove, it being cool weather, warmed his hands a moment, went over to where appellant was standing by a refrigerator, placed his hand on appellant's shoulder, and was about to make some remarks, which will be noticed in a bill of exceptions, but which in fact he did not make. When Master placed his hand on appellant's shoulder, appellant fired one shot, and the difficulty ended; Master going away. The owner of the store, who was also postmaster, states, in this connection, that, just after the purchases by appellant mentioned, Master came in and asked the storekeeper to put him up some nails, and to get his mail. The witness went into the apartment cut off in the store as a post office to get the mail, when he heard a pistol shot; that he heard no conversation. This is the state's case.

There was another witness sitting on the counter by the name of Garnett, who was introduced by appellant. He says: Appellant came in and bought some medicine, stating that he was sick, and that he was so ill that he came very near not being able to reach the store, and had to sit down and rest by the roadside. That he bought a bottle of quinine, and a dime's worth of rock candy. In a few minutes after appellant came, Master entered the store. Appellant was at the time standing by the stove, between the ice box and stove. Master came in and walked up to the stove, and said, "Howdy." Appellant spoke to him, and the next thing he saw Master grab appellant about the collar somewhere or about the neck, and said, "You old scoundrel, I understand you have been—" That that is as far as he got, and the pistol fired. That Master caught appellant by the neck and shoved him backward, or appellant went to step backward and fell over the ice chest, and was leaning back about half recumbent when the pistol fired. That Master was bending over him. Joe Richards, the storekeeper and postmaster, was in the post office part of the store at the time the shot was fired. Appellant testified in his own behalf, going into detail in regard to the former transactions and troubles between them, in which he states, in regard to the difficulty in which he was struck with a hoe, that he did not make any attack upon Master, but that Master attacked him with a hoe, and appellant is corroborated in his statement of the matter by another witness who was present. He admits having the knife open, said he had been whittling with it; that it was a small single-blade Barlow knife with a blade two inches in length. There were three persons present at the time of the first difficulty, appellant, Master, and another witness. In regard to the difficulty at the store, he says he had a severe cold and cough, and had been down sick a week, and had not been able to do anything for some days, and on the evening of the difficulty he felt better and went down to the store to get rock candy and quinine. That he lived about 700 yards from the store; that en route to the store he had to stop and rest on account of his feeble condition; that he put his pistol in his overcoat pocket when he started to the store; that he had it in the right-hand pocket of his over-coat. As soon as he made the purchases, he says he turned and started to walk out of the store, and had walked about halfway to the door, when through the northwest window, which was open, he saw Master coming rapidly, and recalling his threats, he thought if he went out the door he would meet him on the porch, so he turned and walked back to the stove to avoid meeting him. He said Master entered the door at the front end and approached the stove behind which he (appellant) was standing, and when he got up within five or six steps of the stove Master spoke and he replied; that Master seemed to be in such a hurry that he (appellant) backed off around the stove to the east, and Master came right on up to the stove, was kinder rubbing his hands, and, instead of stopping at the front end of the stove, came around and sprung at him, and called him an old son of a gun; that these were the words he understood Master to use, and started to say something, and as he started to say it he jumped at him (appellant), which seemed to check his sentence, and grabbed him by the throat with both hands; that there was an old ice chest there, and when Master sprang against him it knocked him (appellant) over and caught his arm and had him in a sort of recumbent position; that he put his hand in his coat pocket, got his pistol, and shot right over his shoulder. This practically ended the difficulty. His pistol had other loads in it which he says he could have fired but did not. Master was a rather robust man about 44 years of age, and about 5 feet and 11 inches or 6 feet in height. Appellant was 62 or 63 years of age, and in feeble condition for the reasons stated. This is sufficient statement of the facts to bring in review the questions relied upon for a reversal.

1. The first bill of exceptions was reserved to the ruling of the court admitting certain testimony, which is referred to above, and which went before the jury. The bill shows that while L. N. Master, the alleged injured party, was on the stand, in his direct testimony brought out by the state before the jury, the following occurred: Said witness, after stating that defendant shot him in the store, continued: "I went to the store, went in, walked up to the stove, and was warming my hands, and told Richards to give me some nails. Richards said he had to fix up the mail. I told him to look for my mail while in the office. I was warming my hands, and defendant was standing there close by, and there had been some misunderstanding, some talk had been made that was a misunderstanding between him and myself, and I thought while he was there I would speak to him about it and just correct it." To which testimony—that is, that the witness said: "I thought while he was there I would speak to him about it and just correct it"—appellant objected, and exception was reserved to its admission, on the ground that it was not admissible for any purpose, and the secret thoughts of the injured party were not binding upon the defendant, and his self-defense could not be curtailed by such secret thoughts, and the testimony should be confined to what was actually done and said. These objections were overruled, and witness said: "I just started and walked. I was about three feet from the stove, defendant was facing the front of the stove, and I just walked up and put my hand on his shoulder and...