Dixon v. State

• Decision Date: 08 December 1926
• Docket Number: (No. 10156.)
• Citation: 289 S.W. 46
• Parties: DIXON v. STATE.
• Court: Texas Court of Criminal Appeals

289 S.W. 46

DIXON v. STATE.

(No. 10156.)

Court of Criminal Appeals of Texas.

December 8, 1926.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Earl Dixon was convicted of murder, and he appeals. Reversed and remanded.

Mantooth & Denman and Collins & Collins, all of Lufkin, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

HAWKINS, J.

Conviction is for murder, punishment being confinement in the penitentiary for 18 years. This is the third appeal. The result of the first will be found reported in 91 Tex. Cr. R. 217, 238 S. W. 227, and the second in 100 Tex. Cr. R. 83, 271 S. W. 897. The facts are fully stated in the opinion on the first appeal, and only enough will be here given as seems called for in the discussion of the legal points presented.

The party killed was Jim Havard, who had married appellant's sister. The killing occurred on Monday morning at deceased's home. State's witnesses testified that appellant told deceased he had been "accusing and abusing" his wife (appellant's sister), and that he had "accused" her the last time, and immediately fired the shots which killed deceased. Appellant claimed that a few days before the homicide his sister had complained to him about deceased whipping her, exhibiting at the time bruised places on her body resulting therefrom; that on Sunday before the killing on Monday his mother told him deceased had accused his wife of being criminally intimate with negro men; that he killed deceased at the first meeting after being informed of such abuse and accusation, and when his mind was inflamed by passion resulting from such information. The state introduced evidence from which the jury would have been warranted in concluding (and perhaps did conclude) that no such abuses were committed and no such accusations were made by deceased. In this state of the record appellant excepted to the charge of the court because it omitted an instruction to the effect that it was immaterial whether in fact the insulting conduct and language attributed to deceased actually occurred if the jury found that appellant had been informed that deceased did do the things charged against him, and believed the information he received to be true. A number of special charges were requested embracing the same principle of law. The learned trial judge refused them and also declined to amend his charge in response to the objection. We think in this regard the learned trial judge fell into error which demands a reversal under the record before us. To the charge of murder appellant interposed the plea that he was aroused to a manslaughter state of mind by information which he believed to be true of insulting language and conduct by deceased towards appellant's sister, and that the killing was at the first meeting after the information was received and while his mind was inflamed by the passion thus engendered. Appellant had no personal knowledge of the insulting conduct or language, but relied upon the information claimed to have been conveyed to him by his sister and mother. His state of mind depended on whether he received the information and believed it to be true, and not upon the fact of the actual happening of the insulting conduct. Appellant's complaint is sustained by the following authorities: Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Hudson v. State, 43 Tex. Cr. R. 420, 66 S. W. 668; McAnear v. State, 43 Tex. Cr. R. 518, 67 S. W. 117; Canister v. State, 46 Tex. Cr. R. 221, 79 S. W. 24; Bays v. State, 50 Tex. Cr. R. 548, 99 S. W. 561; Gillespie v. State, 53 Tex. Cr. R. 167, 109 S. W. 158; Morrison v. State, 61 Tex. Cr. R. 223, 135 S. W. 551. In the Bays Case, supra discussing a charge upon insults to a female relative as adequate cause, the court used this language:

"Appellant also contends that such charge was too restrictive in that it confined the adequate cause to an actual insult by deceased towards appellant's wife, and that the jury in this respect should have been told that appellant was authorized to act on the information if he believed it true whether the insult ever occurred or not. We believe the principle announced in appellant's contention is correct, and certainly in every case where the fact of the insult is controverted, the court should charge as suggested by appellant."

Our state's attorney has confessed error upon the point discussed, and we are in accord with his view of the matter.

Paragraphs 11, 12, and 13 of the court's charge contain a definition of manslaughter and an explanation of the term, "under the immediate influence of passion," and a general definition of "adequate cause." In the fourteenth paragraph the jury were instructed as follows:

"You are charged that insulting words or conduct of the person killed towards Mrs. Jim Havard, sister of the defendant, would be adequate cause."

Paragraph 15 reads as follows:

"When it is sought to reduce a homicide from murder to the grade of manslaughter by reason of insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide, it must appear that the killing took place immediately upon the happening of the insulting conduct, or the uttering of the insulting words, or so soon thereafter as the party killing may meet with the party killed,...