Hancock v. State

• Citation: 83 S.W. 696
• Parties: HANCOCK v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Decision Date: 15 June 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

83 S.W. 696

HANCOCK v. STATE.^*

Court of Criminal Appeals of Texas.

June 15, 1904.

Appeal from District Court, Johnson County; Wm. Poindexter, Judge.

Lewis Hancock was convicted of murder in the second degree, and he appeals. Affirmed.

Featherston & Sellars and Ramsey & Odell, for appellant. D. W. Odell, Mason Cleveland, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant's trial resulted in a conviction of murder in the second degree, with the punishment of 40 years in the penitentiary. The parties to the difficulty had lived in the same town and had known each other for years, and so far as the record discloses there was no ill will between them prior to the evening of the tragedy. The tragedy came up in a saloon. Deceased had been in the restaurant, adjoining the saloon, and ordered supper. After ordering it he came out through the saloon and went to the water-closet. Returning to the restaurant, he was accosted by appellant in the saloon. Speaking to deceased, appellant called him "Albert." This elicited no reply. Appellant then said, in substance, "I don't think you are much, anyway." To this deceased replied, "I don't think you are much when you are drinking." Appellant then applied a very vile epithet to deceased; deceased being near the front door at the time, and near the cigar case. This latter remark caused deceased to speak. Appellant applied another epithet and struck at deceased. Deceased struck back. One or two licks were exchanged. By the last blow struck by deceased appellant was either knocked, stumbled, or fell against the showcase, breaking the glass. They were separated, deceased immediately leaving the saloon, walking out on the sidewalk, turning toward the restaurant, where his supper had been ordered. Appellant followed him in the same direction. They continued walking for some distance beyond the restaurant, to a point where the sidewalk intersected another street, some 115 or 120 feet away; deceased being in front until they reached the second street, where appellant made another assault with his knife, which is supposed to have inflicted the wound which produced the death. They were separated. At this point deceased sought to avoid further trouble with appellant; but appellant pursued him into a drug store, making declarations in regard to his intention to kill. From this place he chased him some distance, where deceased took refuge in a private residence. Appellant broke in the door and began beating deceased. He was finally pulled off deceased. This occurred on the evening of the 17th of February, and deceased died during the night intervening between the 19th and 20th at about 2 o'clock. This is practically the state's case, as to the immediate facts attending the trouble.

Appellant testified that he was in the saloon at the time deceased walked in, and as deceased returned from the water-closet appellant spoke to him, and deceased failed to speak in return. "I said, `Hello, old friend Arch! don't you know me?' and he didn't answer me. I hallooed to him, `Baird, come back here!' and he turned round and started back to me, and I started towards him. I went to take hold of his right shoulder with my left hand to tell him to come on and let's have a drink. He said, `I don't want anything to do with you at all.' He said, `I don't think you are much, especially when you are drinking.' I said, `I don't either.' I said, `Let's come on and have a drink.' I went to take hold of him again, and he struck at me again, and missed me, and then stepped to one side and struck at me again and hit me with his left hand. After he struck at me the first time, I struck at him and missed him. When he struck me the second time, he struck me with a knife, and it hurt considerable. I saw the knife in his hand. The blade seemed to be broke in two. He cut me across there (indicating) with it. I threw up my hand, and raked it down, and it was full of blood. I flew all to pieces. I said: `You will make a knife play, will you? That's a game two can play at.' Bert Clark got up about that time, and told him to run or get out. He went out, and I followed him. I don't remember anything he said after I got on the sidewalk at all. I followed him, and I remember, when we were crossing the street over there, falling down, and getting up again, and going over to the drug store. I don't remember stopping at the drug store at all. When I came to myself I was washing at Southre Livery stable. They were washing the blood off of me. I don't remember anything else. They told me what had happened. It was something like a dream to me. I couldn't realize it."

In regard to the question of deceased being armed, the state's testimony shows that was not true. The state's evidence shows that the fatal blow was struck on the sidewalk at the intersection of the street, while that for the defendant tended to show it was or may have been done in the saloon during the first altercation. These two difficulties were covered by a very short space of time, estimated to be clearly within a minute. This statement is made to bring in review the charge on manslaughter, of which appellant complains.

The court gave the statutory definition of manslaughter; among others, that with reference to provocation arising at the time of the difficulty, and the passion must not be the result of some former provocation. It is contended the court's charge had a tendency to impress the jury with the fact that the issue of manslaughter was relegated to the second difficulty, which occurred at the intersection of the streets, thereby eliminating those matters which might engender passion, which should have occurred in the saloon at the first difficulty. We do not believe this contention is well taken from any standpoint of the evidence. The court gave the statutory definition in regard to provocation as before stated, which was the usual stereotyped charge on this question; but, having done this, he applied the law as follows: "Although the law provides that the provocation causing the sudden passion must arise at the time of the commission of the unlawful act, it is your duty, in determining the adequacy of the provocation, if any there was, to consider in connection therewith all the facts and circumstances in evidence in the case, and the condition of the defendant's mind from the recent use of intoxicating liquors; and if you find that by reason thereof the defendant's mind at the time of the commission of the unlawful act was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law; and so in this case you will consider all the facts and circumstances in evidence in determining the condition of the defendant's mind at the time he cut and stabbed the deceased, if he did so, and the adequacy of the cause, if any there was, producing such condition; and if you should believe that the defendant committed the act in a sudden transport of passion, sufficient to render the mind for the time incapable of cool reflection, and that such passion was aroused by adequate cause, as adequate cause is hereinbefore explained, then and in such case, or if you have a reasonable doubt whether he so acted or not, in either event you could not find the defendant guilty of a higher grade of homicide...