Dewberry v. State

• Decision Date: 13 May 1903
• Citation: 74 S.W. 307
• Parties: DEWBERRY v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W. 307

DEWBERRY v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1903.

Appeal from District Court, Smith County; Richard B. Levy, Judge.

Young Dewberry was convicted of manslaughter, and he appeals. Reversed.

B. B. Beaird and Felix J. McCord, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of two years, and prosecutes this appeal.

Appellant made a motion for continuance on account of the absence of certain witnesses who had been subpœnaed but were not present at the trial. By some of these witnesses appellant says he expected to prove that when deceased left the neighborhood where he lived, some seven miles from the scene of the homicide, he told them he had been having intercourse with appellant's wife, and that he was going over there on that occasion for the same purpose. Under the circumstances of this case we think said testimony was material, as this testimony would tend to strengthen appellant's own testimony to the effect that, when he approached his house on the night of the homicide, he saw deceased and his wife in the act of copulating. We believe the continuance should have been granted.

Appellant also insists that the court committed an error in giving a charge on manslaughter. He claims that the case did not call for a charge on manslaughter at all, and that the particular charge given impinged on appellant's defense of justifiable homicide, based on the ground that he killed deceased because he caught him in the act of adultery with his wife. We agree with both of these contentions. There were but two eyewitnesses to the homicide, to wit, appellant and his wife. Appellant's own evidence unquestionably raises the sole issue of justifiable homicide predicated on article 672, Pen. Code 1895; that is, "Homicide is justifiable when committed by the husband upon the person of any one when taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated." According to his statement, when he returned to his home from the festival on the night of the homicide, he found deceased in bed with his wife, copulating with her; and whether he killed him in the house or slew him as he fled therefrom is immaterial, for in either event he would be justifiable. According to his wife's testimony, it occurs to us that the offense of justifiable homicide, and not manslaughter, was raised. True, she does not admit that deceased had copulated with her, but she does state that she was at home by herself in bed, and that, when deceased knocked at the door and desired to come in, she arose and let him in. She was in her night clothes, and remained so. Deceased came in, and, according to her account, he came all the way from the festival, some mile and a half, to borrow 25 cents from her. However, he took his seat by the fire, pulled his hat and shoes off, and was sitting there alone with her. Appellant (her husband) arrived unexpectedly, having returned from the festival between 9 and 10 o'clock. He found a strange horse hitched at his gate. He walked into the yard to his house door, and there found deceased and his wife alone in the house. He called his wife. She says that she went to open the door, but he pushed it open, and said, "Oh! God damn you, you have been telling me lies, but I have caught up with you." And then said to Sherman, deceased, "God damn you, I will kill you." And he grabbed his gun, which was in the room, his wife running out the front door in her night garments, in the direction of her father's, some 160 yards distant (where, according to the testimony, she had promised her husband, when he left her, to go that night), and when she had gotten about 20 yards from the house she says that she heard the gun fire. After this she says that the next she saw of defendant was when passing her on his way to and from her father's house, where he went immediately after the killing. She was hid out in the weeds, and did not answer. Subsequently she went to her father's house; and she testifies that ...