Dodson v. State

• Decision Date: 22 October 1902
• Citation: 70 S.W. 969
• Parties: DODSON v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 969

DODSON v. STATE.

Court of Criminal Appeals of Texas.

October 22, 1902.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Sam Dodson was convicted of murder in the second degree, and he appeals. Reversed on rehearing.

Templeton & Harding, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years.

Appellant was a convict guard and deceased a convict. The killing occurred at the camp where the convicts were working, about nightfall. During the supper Tobe Dodson, whom it appears was a "trusty" convict, and deceased engaged in a quarrel, the witnesses calling it "joshing" one another, and applied opprobrious epithets to each other. They came in from supper to the tent where their sleeping bunks were, and appellant told them to stop quarreling, and had all the convicts go to their bunks. The convicts, some four or five in number, including the deceased, were chained in their bunks as usual. After they were chained, Tobe Dodson, who was not chained, and Allen Brown (deceased), again commenced quarreling. Defendant drew his pistol, and got the strap used to punish convicts, and told Tobe Dodson to get on Brown's head while he whipped him. Dodson demurred to this, saying he was a convict, but picked up a pick handle just back of the tent, and came back, still jawing Brown. Brown said: "I will not be a convict always; I will fix the son of a bitch or sons of bitches." At this, Barfield, who, in conjunction with appellant, was in charge of the camp, told defendant if he was going to whip Brown to whip him and quit fooling. Brown said that Dodson could whip him, but that Tobe could not sit on his head. Appellant said he did not want to whip him if he would be quiet. Brown then lay down on his bunk, and commenced talking with Will Ross, who was sleeping with him. After a little while he said, "Oh, Lordy! I have been mistreated this day." Appellant, Dodson, then got up from his bunk, and walked to within 10 feet of where Brown was sitting upon his bunk, appellant having a pistol in his hand, and raised it up in both hands, and said, "God damn you, I will kill you this time," and fired, the shot taking effect in the forehead of deceased. Deceased fell back on his bunk, and died in a few minutes, not saying a word after he was shot. This is in accordance with the state's theory, which is supported by three or four witnesses; that is, all of the eyewitnesses except appellant himself. Appellant testified as did the other witnesses with reference to the quarrel between Tobe Dodson and deceased, and about chaining the convicts, including deceased, to their bunks or sleeping places. He also states as do the other witnesses with reference to threatening to whip Brown. He further says that after the prisoners were chained he lay down on his cot; that Barfield and Tobe Dodson had gone out of the tent to the eating shack; deceased raised up on his mattress, and said he would not be there always; that "God damn them [using some vile language] he would get them when he got out"; that he did not understand deceased to be referring to him by the epithets; that he then got up from his bunk, took the whipping strap in his right hand, his pistol in his left hand, and determined to whip Brown for his disobedience of the rules and obscene language, and went up to Brown's bunk and struck him one lick with the strap; that Brown immediately caught him by the left wrist; that he pulled back and Brown came upon his foot; that defendant dropped the strap, and reached with his right hand for his pistol, which he got; Brown then grabbed him with his other hand by the arm above the elbow, and struck him in the face with some hard substance, and then jobbed his head in his (appellant's) breast; that he then shot Brown in self-defense; the negro was stronger than he, and he did not know what the result of the scuffle would be, but he thought Brown might get his pistol from him; that he did not have a copy of the rules, but it was the custom of the superintendent and assistants to maintain discipline among the convicts, and suppress quarrels and obscene language by chastising with the strap. Appellant also introduced in evidence the order of the commissioners' court passed in 1897, authorizing superintendents and assistants and guards to maintain good order and discipline among convicts, directing and authorizing them to inflict reasonable chastisement, without cruelty or brutality, upon any convict who might violate any of the rules or discipline or any reasonable requirement of the guard or assistant in charge, or was guilty of any insubordination. This is a sufficient statement to enable us to review appellant's assignments of error.

Appellant insists that the court committed an error in not permitting him to prove by himself that previous to the homicide deceased had told him that he had been in the penitentiary and had served a term there for murder. The objection of the state was sustained, and the testimony excluded by the court. Appellant claims that he did the killing in self-defense, under the apprehension that from appellant's conduct at the time that he would kill or seriously injure him, and that the testimony sought would shed light on his action, and show to the jury that he believed deceased was a dangerous man because he had previously told him he had been convicted of murder. If it be conceded that appellant, under the general order of the commissioners' court, had the right in the exercise of...