Freeman v. State

• Decision Date: 22 June 1898
• Parties: FREEMAN v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 641

FREEMAN v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1898.

Appeal from district court, Knox county; S. I. Newton, Judge.

T. H. Freeman was convicted of murder in the second degree, and he appeals. Affirmed.

J. H. Glasgow and J. M. Morgan, for appellant. W. W. Walling and Mann Trice, 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 15 years; hence this appeal.

It appears that appellant and deceased both lived in Guthrie, in Knox county. Appellant was clerking in a drug store, and deceased was keeping a saloon. Prior to the date of the homicide the parties appear to have been friendly. Appellant owned a pet coon, and on that morning some one had turpentined it. When defendant discovered this, he made inquiries of several persons to ascertain who had done this, and denounced the party in very vindictive terms. He was informed by some one that probably the deceased, Potter, was the party. According to the theory of the state he prepared himself with a knife, and when he saw deceased returning from his dinner, he left the drug store and intercepted him. He asked him if he had seen his coon that morning. Deceased told him that he had not. Deceased then asked him why he made the inquiry. Defendant replied that some damn son of a bitch had turpentined it. Deceased then remarked that he had had a hand in that, and that he must not use such language. Thereupon defendant told him, if he had done so, that he was a God damn son of a bitch, and deceased immediately struck him. The witnesses show that the parties exchanged blows for a short time, in which deceased was cut with a knife, and deceased then struck appellant, and knocked him flat on his back, and paused a moment as if to jump on him, but immediately walked off and left him. He went to his saloon, and a doctor was sent for, and his wounds dressed. He lingered for eight or nine days, and then died, as the physician states, from the effect of said wounds. Defendant states what occurred prior to the first blow struck by deceased substantially as do the other witnesses, but states that he got his knife out after he was knocked down; that he cut deceased while he was over him, and had him by the collar. There were a number of witnesses to the difficulty, and all of them testified that the cutting was not done in this manner. Their testimony shows that it was done immediately on first assault by deceased on the defendant, and before deceased had knocked defendant down. Appellant also states that he did not come from the drug store, and cross the square, to intercept the deceased, but that he was then on his way to the hotel where he boarded, to get a bottle of medicine that he desired to use, and that the matter of the coon came up incidentally; though he stated that he had heard prior to that that deceased had turpentined his coon. In addition to this, there was some controversy as to the weapon used by appellant. Appellant himself testified that the cutting was done with the knife which was produced in court, and which was taken from his person after the homicide. This was a small knife, and not in very good repair, and appeared to be dull. He stated, however, that it was sharper at the time the cutting was done. On the part of the state there was testimony tending to show that the cutting was done with a large, bright knife, with blade about three inches long. It was also shown that appellant was a weakly man, and not the equal in physical strength to the deceased. This is substantially a statement of the facts, and is sufficient to present the bills of exception relied on by appellant.

Appellant objected to the witness Tackett stating that a short time after the difficulty, which occurred out on the square, appellant returned to the drug store where he was employed, and that he saw him in proximity to the show case where pocketknives and cutlery were kept; that he was there behind the counter. This evidence was objected to, because there was no testimony to show that any of the knives in said show case were used by appellant in the difficulty; and because the evidence was calculated to mislead and prejudice the jury in the trial of said cause. As stated before, it was a matter of controversy between the state and the defendant as to the knife with which the cutting was done. The testimony of this witness shows that shortly after the difficulty appellant went behind that show case, and was engaged there for some time, and had opportunity to replace the knife that might have been used by him. The knife found on him by the sheriff was after this transaction, and, as shown by some of the witnesses, the wounds of the character inflicted on the deceased could not likely have been produced by the knife found on his person, and when found there was no blood on said...