Dixon v. State

• Decision Date: 22 April 1925
• Docket Number: (No. 8559.)
• Citation: 271 S.W. 897
• Parties: DIXON v. STATE.
• Court: Texas Court of Criminal Appeals

271 S.W. 897

DIXON v. STATE.

(No. 8559.)

Court of Criminal Appeals of Texas.

April 22, 1925.

Commissioners' Decision.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

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

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

Fairchild & Redditt, of Lufkin, and Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BERRY, J.

Appellant was convicted in the district court of Angelina county for the offense of murder, and his punishment assessed at confinement in the penitentiary for a term of 15 years.

The testimony shows that the deceased accused his wife, who was the appellant's sister, of having laid up with a negro man or negro men, and that he violently abused her, and that on Sunday night before the killing on Monday morning the mother of this appellant conveyed to him what his sister had said with reference to the charges and abuse inflicted upon her by the deceased. Appellant introduced proof to show that he was very must agitated, upset and unstrung on account of the information that he had received concerning the charges the deceased had made against his sister, that he was in this condition on Sunday night before the killing occurred the next day, and that on Monday morning he went to the home of the deceased and demanded, or intended to demand, an explanation of deceased's conduct toward appellant's sister, and at this time the killing occurred.

By bills of exceptions Nos. 8, 9, and 10 the appellant seriously complains of the charge the court gave on the question of manslaughter. In presenting the law of manslaughter the court gave the following charge:

"By the expression `under the immediate influence of sudden passion' is meant that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation."

The court also charged that:

"While the law provides that the provocation must arise at the time of the killing, yet, in judging of the adequacy of the provocation and the effect of the passion upon the mind of the defendant, the past conduct of the deceased, Jim Havard, toward the sister of the defendant may be taken into consideration."

The charge in this case is almost an exact copy of the charge that was condemned in the case of Tucker v. State (Tex. Cr. App.) 50 S. W. 711, and in Akin v. State, 56 Tex....