Glenewinkel v. State

• Decision Date: 21 February 1901
• Citation: 61 S.W. 123
• Parties: GLENEWINKEL v. STATE.
• Court: Texas Court of Criminal Appeals

61 S.W. 123

GLENEWINKEL v. STATE.

Court of Criminal Appeals of Texas.

February 21, 1901.

Appeal from district court, Guadalupe county; M. Kennon, Judge.

Charles Glenewinkel was convicted of manslaughter, and he appeals. Reversed.

Dibrell & Mosheim, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years' confinement in the state penitentiary.

By bill of exceptions No. 1 it is made to appear: That "defendant offered to prove by witness August Wahl that he was in the saloon of Ziegenhals on the afternoon of the killing, and that there was a difficulty between defendant and deceased; that it was about the middle of the afternoon,—of same afternoon upon which deceased was killed; that said witness was in the saloon for several hours during the afternoon, and defendant and deceased were in the saloon together; that defendant, in company with witness and one Schorn, were seated at a table in said saloon, playing cards, and deceased came up, uninvited, and accused defendant of cheating in the game; defendant made no reply to deceased; that deceased then got behind the chair of defendant, who was seated at the table, and pushed defendant's hat down over his face, and struck defendant in the back with his fist; that defendant, without resenting the attack, told deceased that he (defendant) was an old man, over fifty years old, with a large family; that deceased was a young man, in his prime; and that he (defendant) could not stand up against deceased; and that deceased then called defendant a `gray-headed son of a bitch,' and said defendant had to fight him (deceased); that deceased continued such treatment towards defendant until witness left the saloon; that defendant all the time protested against fighting deceased, and never at any time scuffled in merriment with deceased, but pushed him back to prevent an unlawful attack upon his person, and that defendant never at any time, while said witness was in said saloon, called deceased a `son of a bitch,' but replied only once to deceased that deceased was `another,' after deceased had repeatedly called defendant a son of a bitch, and after deceased had caught defendant in his beard and shook him and told him he had to fight; that the abuse was not mutual, but was all on the part of the deceased. That said witness Wahl would have testified to the foregoing facts, had the court permitted him to do so, but the court, upon objection of state, rejected it on the ground that it was not competent because witness did not locate the time of the afternoon sufficiently to make said testimony a part of the res gestæ. Defendant offering said testimony for the purpose of showing that deceased was the aggressor, and for the further purpose of showing that there was no mutual abuse, but that deceased did all the abusing, and was tempting defendant to fight, and for the further reason that such testimony tended to explain the action of defendant in taking the life of deceased," etc. The court adds the following explanation to the bill: "That the witness was not able to locate the time so that the court might determine whether the matter was res gestæ or not, and, further, that at the time he was offered there was no evidence in the record tending to show that deceased was engaged in a difficulty with defenda...