Floyd v. State

• Decision Date: 31 January 1891
• Citation: 16 S.W. 188
• Parties: FLOYD <I>et al.</I> v. STATE.
• Court: Texas Court of Appeals

16 S.W. 188

FLOYD et al. v. STATE.

Court of Appeals of Texas.

January 31, 1891.

Appeal from district court, Navarro county, RUFUS HARDY, Judge.

Croft & Croft, for appellants. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellants were jointly indicted, tried, and convicted for the murder of one Frank Patterson. They were each found guilty of murder in the second degree, and the punishment of each affixed at 25 years' imprisonment in the penitentiary. Deceased was killed in the public road, while passing the house of appellant J. R. Floyd. He was shot with a Winchester rifle by appellant Erwine Floyd, who was at the time of the shooting inside of or upon the gallery of his father's house. Appellant J. R. Floyd and deceased had had several previous altercations, and were carrying their guns for each other. But one bill of exceptions is contained in the record, and that was saved to the omission of the court to charge and the refusal of the court to give defendants' special requested instruction upon manslaughter. There was no error in refusing to submit the law of manslaughter in this case. As aptly said by the assistant attorney general in his brief in this case: "There are but two theories in this case, — one of murder and the other of self-defense, — with serious question as to the latter being in the case. Defendants either shot deceased as he was going along the road, and without cause, or they shot him for pointing his gun at the house or the people therein. In the one instance it was murder, in the other the law of self-defense was invoked and given by the court." Green v. State, 27 Tex. App. 244, 11 S. W. Rep. 114. As stated above, the evidence shows that the killing was done by Erwine Floyd. J. R. Floyd, the father, was in the house at the time, but did not shoot; nor is there any testimony whatever going to show that at the time Erwine shot, he, the said J. R., was aiding or encouraging him in any manner, either by words or acts, in the shooting. As to appellant Erwine Floyd we have been unable to find any reversible error in the record of his conviction, and consequently the judgment as to him will be affirmed. As to appellant J. R. Floyd, in our opinion the evidence is insufficient to support the verdict and judgment. It is true he equally with Erwine had had previous serious personal difficulties with deceased, had drawn his gun upon deceased, and threatened his life, had been chased home by deceased only the day before, — both parties being armed with Winchesters. Still at the time of the killing the evidence fails to show that he was in any way, any further than as above stated, a party to or consenting to it other than the fact that he was present...