Gant v. State

• Decision Date: 10 February 1909
• Citation: 116 S.W. 801
• Parties: GANT v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W. 801

GANT v. STATE.

Court of Criminal Appeals of Texas.

February 10, 1909.

Appeal from Criminal District Court, Dallas County; W. W. Nelms, Judge.

Will Gant was convicted of murder in the second degree, and appeals. Reversed and remanded.

Robt. B. Seay and Wilson Wilson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The substance of the facts develops: That about two years prior to the homicide deceased had married the daughter of J. M. Gant, she being the sister of appellant. For about a year after the marriage, deceased and his wife lived in the residence of his father-in-law. That at the termination of the first year of this marriage the deceased moved into a tenant house belonging to his father-in-law, which was situate near the family residence. Appellant resided with his father at the time of the homicide, he owning a tract of land not far away which he cultivated. Deceased and appellant both kept their stock in the barn belonging to J. M. Gant, father of appellant and father-in-law of the deceased. After the deceased moved to the tenant house, two of his brothers, Pel Herring and Harle Herring, lived with him. On Saturday before the homicide on Monday, Mrs. Herring, mother of the Herring boys, accompanied by another brother, Wayne Herring, came from Tyler to visit the deceased, and were at his house at the time of the homicide. At the Gant residence there resided J. M. Gant (father of appellant), his mother, two brothers, and the appellant. In the fall of 1907 Will Gant (appellant) sold deceased a buggy, which was not paid for at the time. During the spring of 1908 appellant called upon the deceased for pay for the buggy, and deceased gave him a check on a bank at Plano. This check was twice presented to the bank, and in both instances payment was refused. The first ill will between the parties arose in consequence of deceased not paying for the buggy, and came up in a conversation in regard to the above check. The deceased turned the buggy back to appellant and gave him a check for a small balance due appellant by deceased on a bank at Richardson. During the conversation in regard to the buggy, and the refusal of the payment of the check, deceased became angered and offered to fight appellant, and, in parting, told him that he would see him at another time.

For the prosecution the three brothers, Pel, Wayne, and Harle Herring, testified in substance that on the evening of the homicide deceased went over to the barn, which, as before stated, was used in common between J. M. Gant, appellant, and the deceased, Lige Herring. His purpose in going to the barn seems to have been to secure corn with which to feed his stock. They testify to seeing the difficulty in the hallway of the barn, in which they state that J. M. Gant, father-in-law of deceased and father of appellant, undertook to strike deceased with a large stick or club, which had been used to prevent a cow from sucking herself and which had laid around the barn after the cow had been sold. They state that deceased jerked the stick out of old man Gant's hand and threw it away. They also state that J. M. Gant struck deceased about the head or neck with the stick and knocked off his hat, and that J. M. Gant threw the hat of deceased over the fence; that deceased went down to the gate of the barn lot and went outside; that appellant and his father went down in the lot, and it was at that time that J. M. Gant threw the hat over the fence; that deceased procured his hat and started back inside of the lot; that, as deceased came in at the gate of the lot, appellant drew his pistol and shot twice; that old man Gant had a pistol drawn, and made threats against the Herring brothers, who, they say, were not engaged in the difficulty, but who were coming up to the gate at the time. These witnesses testify, also, that at the time deceased was shot he did not have anything in his hand; that they only heard and saw two shots fired.

J. M. Gant and appellant both testified to the effect that they were in the barn feeding when the deceased came there; that appellant asked deceased about some mail that deceased had received, which belonged to him (appellant); that deceased stated that he had not kept any mail which belonged to appellant, and appellant said that the mail man had told him that he had delivered to the deceased a postal card for appellant, whereupon deceased denounced the mail carrier and appellant both as "damn liars," and told appellant that if he would come out of the lot he would beat him to death; that deceased picked up at this time the heavy stick referred to, which is thus described in the record: A smooth seasoned elm stick about 3½ feet long and 1½ or 2 inches in diameter, and weighing six or seven pounds, with iron fastenings in each end thereof. They further testified that the wind was rather high, and as the deceased started out of the lot gate his hat blew off and remained in the lot; that J. M. Gant, appellant's father, did not strike deceased with a stick, nor did he have it; that, after deceased went out of the gate, appellant's father ordered him to shut the gate, which had been left open by deceased, and put the hat of deceased over the fence; that the hat blew some distance, and deceased picked it up and came back into the lot, at which point appellant was standing, having gone there in obedience to his father's request to close the gate. They further testified that at the time deceased picked up the hat he made what they term a "hello call," which brought two of his brothers, Pel and Wayne, from the house. Appellant and his father further testify that deceased came on up to where appellant was, in a threatening manner, with the stick in his hand as if to strike with it; that appellant stepped back three or four steps and ordered the deceased to stop; that he did not cease advancing, and appellant fired three shots. They further testified: That Pel Herring had a hoe in his hand, and was but a short distance behind the deceased, and coming, and remarking, "I will cut his head off with the hoe." That Wayne Herring was behind them, grabbing at something on the ground, as if trying to pick up a rock, and remarking, "I will kill them both." The father of appellant says he did not draw his pistol; but, when Pel Herring was coming at appellant with the hoe, remarking that he would kill appellant, that he (J. M. Gant) remarked to Pel Herring, "If you come in this lot I will kill you." They further state that when deceased was shot he turned and started through the lot gate towards his home, and fell somewhere between the lot and his residence, and that he carried the stick with him until he fell; that Pel and Wayne Herring followed their brother (the deceased), Pel still carrying the hoe.

There is evidence, also, on the part of the defense, that the deceased got the stick at the barn; that it was the stick described above, and had been used on a cow and so fastened as to prevent her from sucking herself. It is further testified for the defense that after deceased picked up the stick he never threw it down any more until after he was shot, and that he dropped it when he fell after being shot. The wife of the deceased and sister of appellant testified: That she was in her house in the room with her mother-in-law, and that she looked out of the window and saw the smoke of the pistol. That at this point she saw her father and brother and her husband. That about the time the firing ceased she saw her husband running towards their residence with a large stick in his hand. That she did not wait to see deceased fall, but turned to her mother-in-law, and said, "They are having a racket out there." That thereupon her mother-in-law went out of the building on the opposite side from where the shooting occurred, saying that she would go and bring her boys to the house. Mrs. J. M. Gant (mother of appellant) testified that she heard the shots from her house, which was in sight of the lot; that she heard the report of the pistol, and saw the smoke and Lige Herring retreating, but as there were some obstacles in her way she could not see anything but the upper part of his body, nor could she see what he had in his hand.

There is considerable testimony pro and con as to whether the deceased had the stick in his hand at the time he was shot or not; the state's theory being that the stick was placed near the body after he fell. The testimony for the defense shows that he had the stick in his hand at the time that he was shot, as well as prior thereto, and retained possession of it until he fell. All the testimony shows that the stick was right at the body, in a few inches of appellant's right hand, and that a hoe was found a few feet from the body of the deceased. There is testimony, also, from witnesses to the effect that the deceased had threatened to take the life of appellant and his (deceased's) father-in-law. The jury returned a verdict of murder in the second degree, giving appellant 30 years' confinement in the pentitentiary. There is evidence tending to show murder, manslaughter, and self-defense; appellant's contention being, which he sustained by his evidence, that he shot in defense of his life by reason of the threatened attack upon him by the deceased with the stick above described, reinforced by his two brothers, Pel and Harle Herring, one of whom had a hoe approaching him in a threatening manner and making threats against his life. This, perhaps, is a sufficient statement of the case to review the questions presented.

1. The first question for review is that, after six of the jurors had been impaneled and sworn, they were permitted to separate. In this connection it is shown that this separation was by agreement of appellant. Without going into a statement in respect to these matters, it may be stated that the jury separated with the consent of the appellant, and that he further agreed that...