Davis v. State

• Decision Date: 02 April 1913
• Citation: 155 S.W. 546
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W. 546

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

April 2, 1913.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Mathew Davis was convicted of murder in the second degree, and he appeals. Reversed and remanded.

V. A. Collins, of Beaumont, and John L. Little, of Kountze, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

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

The only cause for the killing grew out of insulting remarks made to defendant's wife on Saturday morning. These remarks were communicated to defendant by his wife that night after they retired. The evidence of the defendant and his wife shows that he was nervous and restless and slept but little, if any, during the night. The next morning early, about sunrise, he secured a pistol and went to see deceased with reference to the matter. Deceased and his wife had spent Saturday night at the residence of their father-in-law, C. C. Burnett. Defendant and the deceased married sisters. Not a great while before the homicide, the home of deceased had burned and he and his wife were invited guests of appellant and his wife until they could build or secure them another home. Saturday morning the two sisters had some words. The deceased remarked to appellant if he would hold his wife he (deceased) would catch his wife and make them kiss and make up. The two men were friendly and there was no trouble between them about this matter. Deceased drank a cup of coffee and left the premises. The wife of deceased was on the gallery, and appellant's wife went out on the gallery, and, as deceased was leaving, she remarked to him, "Bud [his name being Bud Patterson], you derned fool, come back and get your breakfast." He remarked to her, "You go back in the house and shut your God damn mouth and keep your damn mouth shut; I am getting damn tired of it; I don't want any more." He was then standing at the front gate of appellant's yard. This is the testimony of the wife of appellant. The wife of deceased, Mrs. Lethia Patterson, testifies this way about it: "When my husband started out at the gate she [appellant's wife] come on to the gallery and said, `Bud, you derned crazy fool, come back and eat your breakfast.' Bud never said anything. She said, `Bud, you God derned fool, come back here and eat your breakfast.' He just put his hand on the gate and said; `Gertie, you go back into the house and attend to your own damn business and I will attend to mine.'" This is the testimony of the two eyewitnesses to what occurred in reference to insulting conduct at that time. The wife of appellant conveyed her version of it to appellant that night upon retiring. On Sunday morning, about sunrise, appellant went to the house of Mr. Burnett and found Mr. Burnett and the deceased and his (appellant's) wife on the front gallery of Burnett's residence, and asked the deceased to walk out; that he wanted to talk with him. They went off something like 50 or 60 yards and engaged in a conversation. The witnesses did not hear all that was said between them.

Mr. Burnett testified that the parties went something like 60 yards from where he was sitting on the gallery. It was about 20 yards from the gate to the front gallery. He places Mrs. Patterson, widow of the deceased, on the gallery at the time. He says he was noticing them when they come to a stop; could not hear anything that was said; nothing more than the voices; they were talking low. "I saw the movements they made; they stood 5 or 6 feet apart facing one another. They were talking in rather a low tone I think; I could not understand anything they said. I saw Patterson make a start towards Davis pretty peart, and he commenced jumping backwards and running backwards together, and Patterson followed him up some little distance; Davis was fumbling at his shirt bosom to get it open; finally he got the pistol out and threw it on him and he stopped; he stood there a second or two and looked at him and then made for the house. Patterson looked at him a second or two and turned right around towards the house. Patterson never stopped advancing on Davis until the pistol was jerked and throwed down on him. I saw the pistol when Patterson turned and started towards the house. I did not hear anything he said; couldn't hear; couldn't understand anything that was said at all. As to whether right at that time and just a moment before the shooting my daughter Mrs. Patterson holloed to me, `Papa, Bud wants his gun,' well, when he started to run back she said, `Papa, Bud wants his gun,' but I couldn't hear anything that Bud said, but she said she heard him call for his gun and told me that, and I suppose he made that remark at that time; she said, `Papa, Bud wants his gun.'"

Park testified that he was in Burnett's house and did not know when appellant came in the yard. "I was there when Bud Patterson was there because Bud stayed there all night, he and his wife. The first thing that attracted my attention was I heard Mrs. Patterson, Bud Patterson's wife, holloing and screaming, and I heard old man Burnett say, `You, Mathew, don't you do that.' I was in the house at the time and I stepped to the door. I saw Mathew throw the gun down on him and heard it fire. When the gun fired, I judge Bud Patterson was about 30 steps from the house. Mathew Davis shot Bud Patterson with a pistol; he shot him one time."

The evidence shows that the parties were approaching the house at the time the shot was fired; Patterson a little diagonally in front of appellant. The shot entered the lower part of deceased's back, coming out in front just a little below the navel. A day or so later deceased died. In fact, the evidence shows he died on Tuesday. Mrs. Patterson denied calling the deceased a "derned fool" when he left the house that morning, and said she did not use that language. The defendant testified in his own behalf, after narrating the fact that deceased and his wife were guests of himself and wife and had been since the burning of their house, and the further fact that deceased did not spend Saturday night with him and his wife, but did spend it with their father-in-law Burnett. He testifies in regard to going to the house of his father-in-law the following morning to see deceased about his conduct towards his wife. He says that night after they laid down about 9 o'clock he had a conversation with her and she related to him what occurred, and the remarks made by deceased toward her. He said: "She said that, when she walked out on the gallery and told him to come to breakfast, he turned and told her to shut her God damned mouth; that he was tired of her bothering him, and he wasn't going to have any more of it; he would get out of her damned old house as quick as he could." This was the first information that was conveyed to him about the conduct. He says: "When those facts were communicated to me about what Bud Patterson said to my wife, I was very much grieved over it to think she was imposed on in that way. I do not believe I slept at all that night; I don't believe I slept any before 3 or 4 o'clock. It worried me so bad I don't think I slept at all. I got up the next morning about 5 o'clock and went down to tram about 500 or 600 yards from my house. I went for the purpose of borrowing a gun, and failed to find one at the place." He subsequently did find a pistol, put it in his bosom, and returned to his residence. He then went to Burnett's residence and met deceased's son who had just gotten up, and appellant asked him if his father was at home, and he said he was. "I went back out to the crib where I had left the gun. I never carried it in the house. I got the gun and walked right straight from the lot to Mr. Burnett's. It must have been somewhere about 6 o'clock when I got to Mr. Burnett's; the sun was about rising. My purpose in going to Mr. Burnett's was to see Bud about what he said to my wife. I will now tell the jury what I went there for and what I was going to do. I went there for the purpose of seeing him and have a reconsideration over the way he had talked to my wife. I wanted to meet him in a gentle manner. I was afraid of old man Burnett because he was larger than I was and he had three sons; two of them were larger men, and the other was almost as large; and that is the reason I carried the gun with me was in case they doubled up on me I would have protection. I says to Bud, `Bud, I suppose you gave my wife a jag of a cussing this morning?' He said, `Whoever said it told a God damn lie;' and I says, `Don't call my wife a liar.' At the time of this conversation I had called him out of Mr. Burnett's house. I went to him and asked him out of the yard and we went out 60 or 70 yards down the road from the house towards Votaw, which is a little north of east. When I told him this, he had his right hand in his pocket; he jerked his hand out of his pocket and drew back as though he was going to strike me, and I jumped backward to get away, and, as I pulled my hand out of my pocket, he spied a club to the right across the trail and he made for this club. I seen he was going to it ahead of me, and I said, `Bud, don't get that club,' and pulled the gun to keep him from getting the club, and when I said, `Don't get that club,' he cast his eyes on me and saw the gun as I took it out of my bosom and he stopped; he stopped, I suppose, a second or a second and a half and then turned towards the house; when he turned, he said, `Lethia, fetch my gun.' I called him three different times and told him to stop before I threw the gun on him. It was a make of gun I never had in my hands before, and I expected it to be hard on the trigger, and the instant I touched the trigger it went off in my hand, and I happened to have it on him. I heard him hollo for his gun one time. I was right behind him when he holloed for his...