Gaines v. State

• Decision Date: 12 January 1910
• Citation: 127 S.W. 181
• Parties: GAINES v. STATE.
• Court: Texas Court of Criminal Appeals

127 S.W. 181

GAINES v. STATE.

Court of Criminal Appeals of Texas.

January 12, 1910.

On the Merits, March 16, 1910.

On Motion for Rehearing, April 13, 1910.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hood County; W. J. Oxford, Judge.

E. C. Gaines was convicted of manslaughter, and he appeals. Reversed and remanded.

Jno. J. Hiner, Herbert N. Goodson, and G. H. Goodson, for appellant. John A. Mobley, Asst. Atty. Gen., Ben Palmer, Dist. Atty., W. Poindexter, and Callaway & Callaway, for the State.

RAMSEY, J.

We have considered appellant's motion to advance the submission of his case, the record of which was filed in this court on January 3d of this year. The record shows that appellant is on bail. The only ground suggested for advancing the case is that appellant is a member of the Legislature, and it is probable there will be a called session of the Legislature in the near future, and that he should be free, in the event of such call, to give attention to his public duties without the embarrassment of resting under a conviction of a felony. This, of course, is a matter that neither we nor the appellant can know, and about which, in the nature of things, much uncertainty must exist. We have before us many cases in which issues of great public importance are involved, and which should be, in the interest of the general public, advanced. In addition to this we have before us many cases, some of which have been heretofore submitted, in which litigants are confined in jail. We feel like that ordinarily cases ought not to be taken up out of their order unless some public and general good was to be subserved thereby.

It is accordingly ordered that the motion to advance be, and the same is hereby, overruled.

On the Merits.

The appeal in this case is prosecuted from a conviction had in the district court of Hood county, Tex., on the 18th day of October, 1909, convicting appellant of the offense of manslaughter, and assessing his punishment at confinement in the penitentiary for a term of three years.

The killing out of which the prosecution arose occurred in Comanche county, and the indictment was returned in said county, and the case thereafter transferred to Hood county on a change of venue. The record is a very voluminous one, and exhaustive briefs have been filed both by counsel for the state and for appellant. There are many questions raised on the appeal, many of which we deem it worth while to notice. It will therefore be difficult within the limits of any opinion we ought to be called on to write to make a complete statement of the case. The difficulty of doing so, it may be added, is enhanced by the fact that on every issue we are met by contradictions in the evidence. It may, however, be sufficient to state that appellant and J. W. Reese were and had been for some time before the killing, which occurred on the 23d day of July, 1908, rival candidates for the Legislature in Comanche county, and growing out of the canvass before the electors and due in some measure to the nature and character of their political differences much heat and unfriendliness was developed. The record strongly indicates that appellant had been more circumspect in his speech than the deceased. In fact, the record may be scanned in vain for any abusive remarks indulged in by appellant. On the other hand, it is conceded, and is undoubtedly true, that the deceased in the prosecution of his campaign was guilty of both intemperate language in public speech and the circulation of literature containing the most severe reflections upon appellant. Among other things, it appears in the evidence that only a day or two before the killing there had been published by deceased and on his authority circulars which denounced appellant as a double dealer, referred to him as "The Shame of Comanche County," and were headed "Whipped and Disgraced." It seems from the testimony of appellant, and it is in line with the uncontradicted facts, that some of these circulars were thrown in the yard of the appellant on the day before the killing. There is also evidence in the record, which is to some extent disputed, however, that other parties than deceased had made threats against appellant, and their character, considered without reference to the persons making them, were of such gravity as induced him, we think not without reason, to arm himself for his protection. There is no very satisfactory evidence to our mind of any threats by deceased. Appellant testified that he was not afraid of deceased, and did not expect him to attack him unless he provoked him to do it. It appears in the evidence that appellant and deceased lived in the same general portion of the town of Comanche, that on the day of the homicide deceased left his home, walking to town, and that appellant on the morning of the same day started to town in his buggy. It would require a more detailed explanation than seems necessary to make the precise movements of the respective parties understood with reference to this portion of the evidence. It is admitted, however, by appellant that, as he was going to town, he discovered deceased, and concluded to accost him and demand an explanation of his conduct in continuing what he, appellant, thought was an uncalled for attack upon him. The movements of appellant at this point and other circumstances appearing in the evidence are such as in our judgment to raise the issue that he deliberately accosted deceased, watched his movements, and, in connection with all the circumstances in the case, raised the issue that he went to him with the purpose and intent of provoking a difficulty. This was the view of the matter taken by the court below, and is the subject of serious contention in this court. Appellant's able counsel make a strong argument that this issue was not in the case at all. Without setting out in detail the grounds upon which we rest our own conclusion, it seems clear to us that whatever the truth may be there were facts and circumstances in evidence that raised this issue. There were no witnesses to the killing. What took place at the immediate time of the homicide is gleaned from the testimony of appellant, his res gestæ declarations made immediately thereafter, and the dying declarations made by deceased. Appellant claimed to have acted in self-defense. This was denied by the state, and it was the state's further contention that, if at any time appellant's acts seemed to be or were indeed in self-defense, he was guilty of such conduct as to justify the jury in believing that he had deliberately provoked the deceased to attack him with the intention of killing him, and that his acts had the effect intended. So far as it may become necessary in explanation of the several matters discussed in the opinion, additional statements of the facts will be made. The above is the merest outline of a voluminous record, but will, we believe, be sufficiently full to illustrate and render readily understood the matters hereinafter touched upon.

1. The first question raised on the appeal questions the correctness of the court's action in requiring and compelling appellant to testify as to the truth of certain charges contained in the circulars published by deceased. Some of these circulars charged him with failing to pay his occupation tax as a lawyer and also failing to work the streets, and stated, in substance, that warrants for arrest had been issued, and pleas of guilty had been entered by appellant. During the trial appellant as part of his case had offered in evidence these circulars and other inflammatory and denunciatory language of Reese to and concerning him, appellant, in order to illustrate his temper and mind and show the animus of the said Reese as substantive facts to be considered as to who began the difficulty. The objections were overruled, and the appellant was compelled to answer, and did answer, that the facts stated in the circulars were substantially true; that is, that judgment of conviction had been entered against him in respect to the matters alleged. This same matter was presented also in respect to the testimony of U. C. Lovejoy. Lovejoy, it seems, was at the time of the matters inquired about judge or recorder of the mayor's court. He testified that warrants had been issued on affidavits charging appellant with failure to pay his occupation tax as a lawyer and failure to work on the public streets, and that warrants of arrest had been issued and judgments of guilty entered therein, as stated in the circulars. These matters were further objected to on the ground that they were immaterial and irrelevant, that the truth or falsity of said statements were not issues in the case, and that same would be prejudicial to the defendant before the jury, and were calculated to injure and prejudice his case before the jury by proving convictions on these charges. The bill of exceptions relating to the testimony of Lovejoy is approved by the court with the following explanation: "That the defendant had theretofore introduced in evidence the circular issued by deceased charging Gaines with failing to pay his occupation tax, with conviction therefor, etc., and was making the contention that said circular was a slander on his character, and, being such, it aroused his passion till his mind was incapable of cool reflection, etc., and the court felt that the state under the circumstances was entitled to show that it was not a slander, but the truth." It is evident, of course, if it was admissible at all, the testimony of appellant touching the same matter could only be justified on the same ground. We think this testimony was admissible for the purpose of showing what appellant's condition of mind actually was, and to enable the jury to judge and determine the state of his mind and how same was affected by the charges contained in the circular. It must seem evident that the truth or falsity of these statements would be an...