Hathcock v. State

• Decision Date: 17 March 1926
• Docket Number: (No. 9358.)
• Parties: HATHCOCK v. STATE.
• Court: Texas Court of Criminal Appeals

281 S.W. 859

HATHCOCK v. STATE.

(No. 9358.)

Court of Criminal Appeals of Texas.

March 17, 1926.

Commissioners' Decision.

Appeal from District Court, Bell County; Lewis H. Jones, Judge.

O. G. Hathcock was convicted of murder, and he appeals. Reversed and remanded.

W. W. Hair and De Witt Bowmer, both of Temple, and J. B. Hubbard, of Belton, for appellant.

Few Brewster, Dist. Atty., Henry Taylor, Co. Atty., and A. L. Curtis, all of Belton, Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

BAKER, J.

The appellant was convicted in the district court of Bell county for murder, and his punishment assessed at ten years in the penitentiary. This is the second appeal of this case to this court. The first appeal will be found in 263 S. W. 587, 97 Tex. Cr. R. 550.

The record discloses that the difficulty, which resulted in the death of the deceased, occurred on the public streets of the city of Belton on November 25, 1922. It appears from the record that there had been a singing school in the neighborhood of the appellant and the deceased, Garner, in which Garner guaranteed to the teacher a certain sum before he would agree to teach said school, and that there was a subscription list circulated, which was signed by the appellant, in which he agreed to pay $1.50 to same, and which was never paid by said appellant. The deceased, it appears, paid the $1.50 subscribed by the appellant, and, upon appellant's refusal to pay him back said amount, he (appellant) contended that the deceased struck him several violent blows with his fists, which caused him considerable pain, produced some blood, and which stunned him, and that, as soon as he could get up and get straightened, he began cutting the deceased with his knife, and continued to cut him while the deceased was backing about 15 feet, and until he (appellant) saw he was out of danger, and then desisted. The record discloses that the deceased was a larger and stronger man than the appellant. Appellant also contends he did not know at that time that the deceased had guaranteed the amount to the teacher, or paid the amount he subscribed thereto.

This, together with the facts set out in the former opinion, is a sufficient statement of the facts for a discussion of this opinion. The record in this case is very voluminous, and among other things contains 38 bills of exceptions, and for the sake of brevity we must of necessity, therefore, limit this opinion to the vital questions presented as we understand them.

Bills 8 to 14, inclusive, complain of the action of the trial court in permitting the state, over his objection, to introduce evidence from various witnesses, who were present and observed the fight, and during the progress of the fight, and while the appellant was cutting the deceased with his knife, to the effect that one Hunter, a bystander, stated, when the parties fighting were near him, "Cut his God damned head off," or "Cut his head off," or words to that effect, because it is contended that said testimony was very harmful and prejudicial to the rights of the appellant before the jury, was not res gestæ, and, coming from a bystander, the appellant would not be bound thereby. We have carefully examined the authorities on this question, and have come to the conclusion, from all the facts and circumstances surrounding this case, that said testimony was properly admitted. The record discloses that Hunter, a short time prior to the difficulty, had been in conversation with the appellant, and they were close together at the time the...