Gillespie v. State

• Decision Date: 11 March 1908
• Citation: 109 S.W. 158
• Parties: GILLESPIE v. STATE.
• Court: Texas Court of Criminal Appeals

109 S.W. 158

GILLESPIE v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1908.

Appeal from District Court, Baylor County; J. M. Morgan, Judge.

Guy Gillespie was convicted of murder in the second degree, and appeals. Reversed and remanded.

J. T. Montgomery, J. A. Stephens, and Holman & Dickson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary.

Bill of exceptions No. 5 complains of the following: Defendant's counsel objected to the sixteenth paragraph of the court's charge, defining adequate cause, by requiring a condition "which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection, as adequate cause," and when several of such circumstances might be found to exist, though no one of them might be found sufficient, yet all, taken and considered together, might, in the opinion of the jury, be sufficient to create in the mind of the party killing, the above conditions of sudden anger, rage, sudden resentment, or terror rendering the mind incapable of cool reflection. The appellant insists that the charge is incorrect in this case, since the law did not require that the anger should be sudden, or sudden passion, and the same is an unjust limitation upon the rights of the defendant and misleading. Bill of exceptions No. 6 complains of the same error in the charge.

These charges are erroneous. See Kannmacher v. State (Tex. Cr. App.) 101 S. W. 242, and Redman v. State (decided at the present term) 108 S. W. 365. It was not proper in this case to charge upon more than one phase of manslaughter. Appellant's testimony that suggested manslaughter was the insult and outrage upon his (appellant's) sisters by the deceased, who was his father; he claiming that deceased had had sexual intercourse with his sisters and that he killed him upon the first meeting. The state's evidence showed a cold-blooded murder, either of the first or second degree. It follows, therefore, in the first place, that the court should not have charged upon any grade of manslaughter except insult to a female relative; and, in the second place, the court erred in telling the jury that the passion that appellant might be laboring under at the time of the homicide must be a sudden passion. As appellant insists, the court further erred...