Hammons v. State
| Decision Date | 02 June 1915 |
| Docket Number | (No. 3548.) |
| Citation | 177 S.W. 493 |
| Parties | HAMMONS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Bowie County; H. F. O'Neal, Judge.
Mack Hammons was convicted of murder, and appeals. Reversed.
J. Q. Mahaffey and Joe Hughes, both of Texarkana, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
Appellant was convicted of murder, and his punishment assessed at 15 years' confinement in the penitentiary.
The evidence would show that there was a dance at the residence of deceased some three weeks or a month before appellant killed Pearl Stroud. Appellant played the violin at this dance. A difficulty arose between appellant and his brother, Zack Hammons. Deceased attempted to interfere in this difficulty, and appellant and Stroud had a difficulty. Witnesses for defendant say that next morning, when Joe Hokes went to deceased's home after his watch, deceased cursed Joe Hokes, and used very approbrious language towards appellant, saying he was going to whip appellant when he met him, one saying that deceased said he was going to kill appellant on sight. The evidence makes it clear that appellant was told about this matter, and he later saw deceased; deceased denied making any such remarks, and he and appellant apparently, according to the record, became friendly. Several witnesses for appellant say they saw deceased subsequent to this time, and he told them, while he denied making the remarks attributed to him, and made friends, he did so to get an opportunity to kill appellant, and they so informed appellant. Two witnesses also testify that they had heard that deceased on one occasion had sought to waylay appellant and kill him, and had so informed appellant. Defendant sought also to introduce threats that deceased is alleged to have made that he would also kill Joe Hokes, contending that, as appellant and Hokes were jointly charged with the offense of killing deceased, this testimony would also be admissible. Appellant alone was on trial, and we do not think the threats, if any made, to do Hokes bodily harm were admissible. It is not shown that he had knowledge of such threats, and they could, in no way, have influenced his action. The only threats in the record, after appellant admits he saw deceased, and he had denied making any such threats as the witnesses say they communicated to appellant, is the threat that deceased had said "he made friends with appellant to get the drop on him and kill him," and evidence of Ed Autrey and Grover White that they told appellant that they had heard that deceased was waylaying the road for him. Will Autrey also testified he told appellant that Stroud, deceased, was hunting for him with a gun. They also say these matters were communicated to appellant prior to the day of the fatal difficulty.
On Sunday, the 5th day of April, it appears that appellant, Joe Hokes, J. T. Markham, Grover White, Monroe Hicks, and Dump Hicks had all gathered at the home of George Hicks. While they were there, some engaged in playing checkers, and others engaged in "pitching dollars," deceased rode up, called Mr. Dump Hicks to one side, and borrowed a plow from him to break some land. As he started off, appellant and Joe Hokes started towards deceased and told him to hold on a minute, they wanted to see him. Deceased got on his horse and started off, when appellant called to him, either, "Run, you coward," or "Run, you cowardly son of a bitch." Deceased proceeded on his way, his horse traveling in a lope. As he started off, appellant remarked if he had a horse he would overtake deceased. Joe Hokes remarked he had a horse at Grover White's, a short distance away, and he would go and get it. He did so, and as he drove back, appellant got in the buggy with him. At this time some of those present suggested that they do not go after deceased; that he would be at Dump Hicks' the next day after the plow he had borrowed, and they could see him then. Joe Hokes said he had to plant corn the next day, and appellant and Hokes put their horse in a run going after deceased. They overtook him near the home of Jim Stinson, when the fatal shooting took place. Deceased was riding a two year old pony, and never stopped running the pony until after he was shot and he had arrived at the home of Doc Autrey. The testimony of appellant would show that, when they had pursued the deceased for about a mile, they overtook him, and when they did do so, deceased turned in his saddle and shot at them, when both appellant and Joe Hokes returned the shot. Some of the testimony would indicate that when appellant and Hokes overtook deceased, they stopped the buggy and shot at deceased, when he returned the shot. Their contention is that, when they caught up with him, they called to him to "Hold on, we want to have a friendly talk with you," when deceased drew his pistol and fired. They then stopped their buggy and began shooting at deceased as he continued to flee, emptying their pistols.
Appellant requested the court to instruct the jury that even though he and Joe Hokes pursued the deceased with the intention to kill him, yet if when they overtook deceased he drew a pistol and fired, appellant would be justifiable in killing him. We do not think this is the law under the facts in this case. It is true that, even if one goes to where another person is with the intention of killing him, yet if he commits no overt act to bring on the difficulty, he would not be deprived of his right to defend himself from an assault then made on him. But the evidence in this case presents no such state of case. When he fled from them from the home of George Hicks, and they got a horse and buggy and pursued him at a rate of speed to cause those who saw them coming to say, "Look, Joe Hokes' horse is running away," it was such an overt act in and of itself that if they pursued him with the intent to kill him or do the deceased serious bodily injury as to deprive themselves of the right of self-defense.
Neither do we think the court erred under the evidence now before us in refusing to submit the issue of manslaughter. They by their course in pursuing deceased brought about the occasion of the difficulty. Nothing was said at the time of the difficulty by deceased; he continued to flee even though he may have shot first. If they pursued him with no intention to bring on a difficulty that might result in death, self-defense might be in the case, but not manslaughter. And if they pursued him with the intention to kill or do him serious bodily injury, neither manslaughter nor self-defense would be in the case. That manslaughter is not in the case is evidenced by the testimony of appellant. He admits that after he emptied his pistol, and deceased had fled from their sight, he got out of his buggy and got the hat of deceased, which he had lost in his flight; that they drove back up the road, and met Mr. Markham and others, who had followed on after them, and was asked, "Did you get him?" Appellant responded, "No; we got his hat," and then testifies:
This indicates anything else but a state of mind which would reduce an offense to manslaughter.
The court submitted the issue of self-defense, and if self-defense is raised by the testimony, there are several matters complained of that will necessitate a reversal of the case. In the first place, appellant proved by Josh Hicks that he had heard deceased say he was going to kill appellant on first sight, and that in the same conversation deceased told him (Hicks) that he (deceased) had killed one man in Oklahoma, and that he communicated this conversation to appellant. The court permitted the witness to testify what deceased had said about killing appellant, but refused to permit him to testify what deceased had said about killing a man in Oklahoma. In this the court erred. The fact that deceased in a conversation had said he was going to kill ap...
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