Davis v. State

• Citation: 163 S.W. 442
• Parties: DAVIS v. STATE.
• Decision Date: 21 January 1914
• Court: Texas Court of Criminal Appeals

163 S.W. 442

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

January 21, 1914.

On Motion for Rehearing, February 11, 1914.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

J. W. Davis was convicted of murder, and appeals. Corrected and affirmed.

R. L. Williford and R. M. Edwards, both of Fairfield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at ten years' confinement in the penitentiary.

That appellant killed deceased is proven both by the testimony of the state and the defendant. The state's witness Joe Bryant says that he and deceased started to the woods to cut out a road, and both had axes in their hands; that deceased's wife asked him to try and kill a squirrel for a sick child, and deceased also had a gun in his hands; that, as they started out of the "tramp lot," appellant appeared at the gate, advanced toward them, and raised his gun, when deceased jumped behind him; that he (Bryant) jumped out of the way, when appellant fired, killing deceased. He would have deceased making no demonstration, but endeavoring to get behind him and out of the way when he was killed.

The only other person present at the killing was appellant. He says he was at the gate on his way to a neighbor's, and, when deceased came near him, deceased raised his gun as if to shoot him, when he (appellant), believing his life was in danger, fired and killed deceased.

The court in his charge submitted the issue of self-defense very favorably to appellant, and in a way not complained of by him; so that may be said to pass out of the case. However, there are two theories as to motives for the homicide. Appellant contends that on Sunday, the day before the homicide, he had been informed by his wife that deceased had made improper proposals to her, and this was the first time he had met deceased since being so informed. His wife supports him in this contention, she saying that on Sunday morning deceased made improper proposals to her for the third time. Using her language, she says: "I had gone to the creek after water, and I met Sam down there, and he asked me if my husband had come back, and I told him, `No,' and he said, `Coot, this is as good a place as we will ever have.' And I said, `What for?' And he said: `You know what I have been asking you for. Well, you are going to do that to-day.' And I started by him, and he caught me by the arm, and I jerked loose from him, and he tore one side of my dress nearly off, and I hollowed and called my husband. I hollowed three times. This all happened between 11 and 12 o'clock. My husband was not at home at that time. He had gone over to Judith Tippins'. My husband came home that night about 8 o'clock. I told my husband about what Sam Wilson had done and said that morning.

To support the contention that deceased had made improper proposals to his wife, appellant introduced several witnesses who testified that the general reputation of deceased for lewdness was bad in the community where he lived. In rebuttal the state introduced W. G. Duncan, who testified that the general reputation of deceased was good. On cross-examination, among other questions propounded to him by appellant's attorneys, he was asked if it "was not common, current report that deceased was keeping Pearl Howard and keeping Sarena Durham." Where a witness swears to the good reputation of deceased in any respect, on cross-examination the defendant should be allowed broad latitude in testing the witness' knowledge, and especially should defendant be permitted to ask if he did not know reports were circulated derogatory in respect to the matter to which he has sworn to a good reputation, and, if the bill had stated that the witness would have testified that such was the "common, current report," it perhaps would present error. However, the bill does not state that the witness would have so testified, but merely recites that he "expected" or hoped so to show. It may be that, if the witness had been permitted to answer the question, he would have testified that it was not a matter of "common, current report"; the bill contains no allegation that he would have so testified. In addition, the issue is this case was not whether in fact deceased had made improper proposals to the wife, but had he been so informed, and this would have no tendency to show that he had been so informed. In the charge the court instructed the jury that, if appellant was informed that the insulting conduct had taken place, it would make no difference whether or not deceased was in fact guilty of such conduct or not. So that this testimony would have but a slight tendency to support the main issue; therefore the ruling of the court would not present reversible error. And on this issue the court instructed the jury: "By the expression `adequate cause' is meant such as would commonly produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: (a) Insulting words or conduct toward the wife of the defendant; (b) any condition or circumstance which would render the mind of a person of ordinary temper incapable of cool reflection." He further instructed the jury: "You are instructed that if you find from the evidence in this case that defendant, J. W. Davis, before the killing, was informed and believed that Sam Wilson had been guilty of insulting conduct toward his wife, or had uttered insulting words regarding her, and if you further believe that such information produced in J. W. Davis' mind a condition of anger, rage, sudden resentment, or terror sufficient to, and which did, render his mind incapable of cool reflection, and if you further believe that J. W. Davis, upon the first meeting with Sam Wilson after he had been informed of such insulting words or conduct, if any, shot and killed Sam Wilson because of said insulting words or conduct, and the influence thereof upon his mind, then, if you so believe, you cannot find the defendant guilty of any higher grade of offense, if any, than of manslaughter, it makes no difference whether you believe that Sam Wilson was guilty of the insulting conduct or of uttering the insulting words concerning defendant's wife or not."

The contention made is that the court left to the jury the question of whether or not insulting words would be adequate cause to reduce the offense to manslaughter. By the paragraphs above copied, as well as the remainder of the charge, it will be seen that such contention has no foundation in the record, but the court specifically told the jury that this would be adequate. The question he submitted to the jury was whether or not this did produce such anger, rage, resentment, or terror as to render the mind incapable of cool reflection, and in this the learned trial judge was correct. Adequate cause may exist as a matter of law (and in this case the court instructed the jury, if appellant was informed that deceased had used improper language or made indecent proposals to the wife, this would be adequate cause); but whether or not this adequate cause produced that condition of mind to reduce the offense to manslaughter is always a question of fact to be determined by the jury, and the criticisms of the court's charge in this respect are without merit. Massie v. State, 30 Tex. App. 64, 16 S. W. 770; Jones v. State, 47 Tex. Cr. R. 515, 85 S. W. 5; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158; Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; and cases cited in Willson's Ann. Stat. under title "Manslaughter."

The state undertook to show a different motive for the killing. By the wife of deceased, it showed that on Sunday morning appellant was at deceased's house, and during their conversation deceased accused him of fighting his wife. Appellant denied he and his wife had any fight, but admitted he passed deceased's house that morning and deceased accused him of mistreating his wife. Sarena Durham, Pearl Howard, and Fannie Durham testify that they met appellant in the road Sunday, and appellant said "that Sam Wilson (deceased) had told a lie on him that morning about him whipping his wife, and that it would be settled in less than two weeks." Judith Tippins testified that appellant was at her house on Sunday and said that deceased had out a report on him about him whipping his wife; that he did not whip his wife, and when he saw deceased "he would have to prove it or eat it." Abe Jones testified that, shortly after the killing on Monday morning, appellant came through his bottom field and told him he had killed Sam Wilson that morning, and when asked what was the matter said: "On Sunday morning he went to Sam's house, and he owed Sam a day and a half's work, and Sam asked him for that, and accused him of beating his wife." He further said that he and Sam had had some trouble about a little pig running out, and claimed that Sarena Durham had told him some things, but did not say what they were, and appellant then asked him how long the court would send him up for, and witness replied to appellant that he might plead self-defense, when appellant remarked that Sam had his gun up and right barrel cocked.

In cross-examination of the witness Abe Jones, appellant asked him, "if it was not true that deceased and his people ginned their cotton at his gin, while defendant's daddy and his people did not do so." The state objected to the testimony, and the objection was sustained. Appellant being a married man, and not being with his father, what his father did or did not do would not be a material inquiry; but if by the words "his people" was intended to include appellant, and it was intended to show that the witness Jones entertained animosity towards him because he would...