Gantt v. State

• Citation: 105 S.W. 799
• Parties: GANTT v. STATE.
• Decision Date: 19 June 1907
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

105 S.W. 799

GANTT v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1907.

Rehearing Denied December 4, 1907.

Appeal from District Court, Chambers County; L. B. Hightower, Judge.

B. Gantt was convicted of murder in the second degree, and he appeals. Affirmed.

A. W. Marshall and C. F. Stevens, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree.

Appellant complains of the refusal of the court to permit him to prove by the witness Dabney "as to what trouble he referred to when he informed the deceased in the presence of the defendant during a previous difficulty between the two that he had just gotten out of one trouble." This testimony would have shown that the deceased had been previously convicted of homicide, and upon a second trial acquitted. Appellant was permitted to prove by Dabney that Dabney had warned the deceased against getting into any further trouble; that he had just gotten out of one. It was in this connection that appellant desired to prove by Dabney that the trouble he referred to was the killing of Childs. It was not stated that Childs' name was mentioned in the conversation between deceased and Dabney, and the bill of exceptions reserved in the statement of facts fails to show that the particular homicide or trouble was in any way mentioned. The language used was very general in regard to the warning about getting into trouble, on account of having shortly before gotten out of a former trouble. We think appellant got the full benefit of what occurred between Dabney and the deceased. He was permitted to prove, so far as the bill of exceptions is concerned, all that was said between them in regard to the former trouble; and in this connection it may be further stated that, if this testimony had any relevancy to this case, it was to show the dangerous reputation of the deceased. This was abundantly proved. The parties lived in the same town, and had been living there for some time. Appellant himself testified that he knew the dangerous character of the deceased; that he made threats against his life, and for that reason he had armed himself, as he states, for his own protection against the deceased. Others testified as to the reputation of the deceased as a dangerous man. There was also some testimony in the case going to show that deceased made a serious assault upon his (deceased's) wife prior to this homicide. So, as the matter is presented, we do not believe there was any error, at least of sufficient importance to require a reversal.

Appellant complains of the charge on murder in the second degree, in the fifth ground of his motion for a new trial, in the following language: "The court erred in paragraph 6 of its charge, wherein it undertakes to define murder in the second degree, and wherein it defined implied malice, because the same is incorrect and upon the weight of the evidence." Whatever supposed error is included under the word "incorrect" we are not informed. This is too general to require a discussion, under the ruling of this court. Under the decisions of this court the error or supposed error of the charge must be pointed out. The charge, we do not think, is subject to the criticism that it is upon the weight of the evidence. The charge reads as follows: "The next lower grade...