Girtman v. State

• Citation: 164 S.W. 1008
• Parties: GIRTMAN v. STATE.
• Decision Date: 04 March 1914
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

164 S.W. 1008

GIRTMAN v. STATE.

Court of Criminal Appeals of Texas.

March 4, 1914.

Rehearing Denied March 25, 1914.

Appeal from District Court, Austin County; Frank S. Roberts, Judge.

Paris Girtman was convicted of manslaughter, and he appeals. Affirmed.

J. E. Edmundson and Duncan & Duncan, all of Bellville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

From a conviction for manslaughter on a trial for murder, appellant has appealed.

The record shows, by appellant's first bill of exception, that prior to the announcement of ready the district attorney requested the court for time to confer with the witnesses and arrange the order of testimony. Whereupon the court advised him that he would be given the necessary time after the selection of the jury; that after the jury was selected, and before they were sworn to try the case, or the indictment read, and before appellant had pleaded, the court permitted the district attorney to confer with the witnesses by taking them collectively into a room adjacent to the courtroom, and where each and all of them could hear the testimony of each; that after this, and before any of the witnesses were placed on the stand, all of the witnesses for both sides were sworn and placed under the rule. The appellant objected to this action of the court in permitting the district attorney to thus confer with these witnesses. On what ground is not stated. The bill shows no error. This court, in a uniform line of decisions, has all the time held that such matters must be left to the sound discretion of the trial judge, and, unless the bill shows that this discretion has been abused to the injury of appellant, this court will not reverse. There is nothing in this whole record which indicates that this action of the court and the district attorney in any way injured appellant. The contradiction of one another by the witnesses is more than usual, and there is nothing that tends to show that by the district attorney having them together and going over the evidence in any way caused them to swear to the same thing. See cases cited in section 767, White's Ann. C. C. P.

The deceased, "old man Allen Reed," as he is called by the witnesses, is shown to have been killed on the night of February 15, 1913. Dr. Steck, an active practicing physician, made an examination of his body the next morning. His testimony shows, without contradiction that his head and face was beaten in a most cruel and brutal manner. The doctor showed: That there was an irregular cut wound back of the right ear of deceased of the soft tissue about a half inch long. That here the skull was fractured, and he passed a probe downwards toward the mastoid process between the two plates of the bone about 1½ inches. That above the right ear was a lineal wound of the scalp 1½ inches long from front backwards, extending up and down this way (illustrating). That just back of the top of the head was a scalp wound describing about a half of a circle, and in the center of this was a small part of skin in tact. This wound looked as though it had been made by the end of a hollow instrument. That there were several jagged cuts on the nose—one down the center 1½ inches long. That there were several on the right side of the nose, one of which was about 1½ inches long. That the nasal bones were broken, the inner side of both orbits broken, as well as both the malar bones, and the superior maxillary bone or upper jaw bone was broken transversely about the lower part of the nasal fossa. Several of the upper teeth on the right side were broken loose en masse; that is, there were three or four teeth that hung together in one piece. The bone and whole piece was loose—broken. That there was a long somewhat circular lacerated wound through the right brow, and a small cut wound on the left upper lid. The lobe of the left ear was cut through. There was a lacerated wound on the left side of the top of the head, which looked as if made with a blunt instrument. This was more in the nature of being broken than cut. It was 2½ inches long from the front backward and extended through the scalp. There was a scalp wound just below this one, 1½ inches long, running vertically. There were several abrasions on the left arm which looked like a puncture; looked as if they were struck at an angle. There was an irregular shaped cut on the flexor side of his left wrist, an abrasion or skinned place on the left leg about the middle thereof, 3 inches long, just to the outside of the shin bone, an abrasion just below the left knee cap, also a skin wound. That these wounds were fatal, and that after those on the head were inflicted the deceased could not have gone anywhere but would have dropped. That the wounds on the head could have been made with a 45-caliber pistol used as a club, by holding it at either end.

The court did not err in permitting Dr. Steck, as shown above, to testify that said wounds on the deceased's head could have been made with a 45-caliber pistol used as a club. The state produced, identified, and introduced in evidence a 45-caliber pistol which was shown and admitted to have been appellant's pistol and had by him that night at the time deceased was killed, with blood still on it, though after the killing he is shown to have attempted to wash all the blood off. The pistol was also shown to have been sprung, evidently caused by being used as a club on the head of deceased, and also that the handle thereof was broken and shattered at the time.

The evidence is quite conflicting. Many witnesses, negroes, who were at the scene of the killing, as well as appellant, testified. Notwithstanding the conflicting testimony, from the whole of it, it is clear that a sort of general fight between the deceased and others began at appellant's house where deceased lived, and that at first the deceased, with a tin, or small penknife, cut, slightly on the arm, one of the negro women who was engaged in the fight with him; that thereupon others became engaged in the fight, or were attempting to prevent it, when some three of the parties either fell or were thrown out of the door of the house, the fight it seems beginning in the house. They were separated or separated themselves. One Fax Williams, who was engaged in the fight, or in attempting to separate the parties, one or the other, after getting up or being taken up from the ground, started to the wood pile to procure an ax with which, it seems, he intended to kill the deceased or defend the women with whom deceased was engaged in the fight. Thereupon the deceased started to the house of the landlord, Mr. Diemer, who lived just 200 yards away, announcing that he was going after a gun to protect himself or kill said Williams. Williams was intercepted with the ax, and it was taken away from him and placed under the bed of appellant's wife, where it remained and was not in any way used in the fight or otherwise in connection therewith. Deceased immediately proceeded to Mr. Diemer's house. This was about midnight. He called Mr. Diemer out, asked him to go down and take appellant's pistol away from him and make Fax Williams leave the place; that they were fixing to kill him. He repeated this request at the time three or four times, and he then told Diemer that if he (Diemer) would not protect him to loan him his gun and he would protect himself. It seems Mr. Diemer did not take the matter seriously and did not respond to the deceased's request. The deceased thereupon immediately went back to appellant's house, where he lived, and the fight was continued or renewed. In the meantime, while deceased had gone to Mr. Diemer's, Fax Williams left the scene and went to his home 1½ miles distant and remained and did not know of the killing until the next day. Diemer did not know of it until the next day. Diemer further testified that in four, six, or eight minutes—"a very short while after he (deceased) left"—he heard a pistol shot at appellant's house. The testimony otherwise clearly shows that appellant fired this shot at the deceased, but missed him. The testimony also otherwise shows, in effect, that all the other negroes at appellant's house took refuge therein, leaving only the deceased and the appellant out in the yard; that when deceased returned from Diemer's and the fight was continued, or renewed, he went into his room and procured a razor and was either attempting to fight or protecting himself therewith; and that he at that time cut another one of the negro women on the arm and she fled the scene taking refuge in the house. It was just after this that appellant fired the shot at the deceased, and...