Hathcock v. State

• Decision Date: 11 June 1924
• Docket Number: (No. 7926.)
• Citation: 263 S.W. 587
• Parties: HATHCOCK v. STATE.
• Court: Texas Court of Criminal Appeals

Page 587

263 S.W. 587

HATHCOCK v. STATE.

(No. 7926.)

Court of Criminal Appeals of Texas.

June 11, 1924.

Appeal from District Court, Bell County; John Watson, Judge.

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

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

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Conviction is for the murder of Robert Garner, with punishment assessed at confinement in the penitentiary for 25 years. The killing occurred in Belton on November 25, 1922, on a Saturday afternoon, when many people from surrounding trade territory were in the city. Deceased and appellant lived in the same community and had known each other for years. No ill feeling appears to have existed between them until a few months prior to the homicide. The state introduced many witnesses who were present in Belton at the time of the difficulty which resulted in Garner's death, but none of them saw the fight at its inception nor knew what led to it. When their attention was attracted to the disturbance the fight was in progress; appellant using a knife, cutting at and advancing on deceased as he backed down the sidewalk. Some of the state's witnesses say deceased was fighting appellant and backing; others, that he appeared only to be attempting to ward off the blows of appellant. It appears from the defensive evidence that some months before the difficulty a singing school had been taught in the community where appellant and deceased lived, for which the teacher charged a dollar and a half per pupil. Deceased seems to have been connected with getting up the class in some way. Appellant started to the singing school, but after attending two or three times ceased to go, because he reached the conclusion that he could not learn to sing. He testified that the teacher tried to induce him to continue his attendance, with the statement that if he failed to derive any benefit from the school no charge would be made. We gather from the record that Garner had become responsible for the payment of tuition and had paid to the teacher the dollar and a half which would have been due from appellant, unless he was relieved from payment by his failure to attend and the statement of the teacher to him. Several weeks before the homicide deceased met appellant in the town of Belton and demanded payment of the dollar and a half, which appellant refused on the ground that he did not owe for the singing lessons. Deceased resented the refusal on the part of appellant to pay and told him at that time that he would have to pay it. On the day of the homicide appellant was seeking one of the county commissioners to get an order for some lumber with which to repair a bridge on a road over which appellant was overseer. In the forenoon deceased approached appellant and again demanded payment of the money, telling appellant he had to pay it; appellant replied, "I understand you said you were going to whip me if I did not pay for it;" to which deceased responded that he did make such statement and meant it. At this juncture the conversation was interrupted by another party; appellant left, saying that he had to see the county commissioner, whereupon deceased asked him to come down to the wagon yard later. Appellant agreed to do this, but never went, and testified that he had no intention of going, but promised to do so in order to avoid trouble at the time. In the afternoon, while appellant and other parties were standing on the streets engaged in general conversation, deceased approached the group. According to appellant's testimony, he moved to the opposite side of the crowd from deceased, but deceased pushed his way through the group of men and again demanded to know if appellant intended to pay the money. Not only appellant, but other witnesses for him, testified that, when appellant again declined to pay, deceased immediately struck him several blows about the face and head before appellant ever drew his knife. The defense witnesses do not differ materially from the witnesses for the state as to what occurred after appellant got his knife open and began to cut deceased. Appellant testified that the blows upon the head caused him much pain; that he did not get, or attempt to get, his knife until after he had been struck a number of times by deceased.

Charging upon manslaughter in explanation of what was meant by the expression "under the immediate influence of sudden passion," the court told the jury it was not enough that the mind should be merely agitated by a passion arising from some other provocation, "or a provocation given by some other person than the party killed." The last part of the charge was excepted to, because there was no evidence that any party other than deceased was connected with the killing in any way, or that any other party had given any provocation to appellant. In Craft v. State, 57 Tex. Cr. R. 257, 122 S. W. 547, it was held that such instruction should not be given in the absence of evidence raising an issue of provocation by some person other than deceased. We call attention to it in order that this part of the charge may be omitted if the facts should be the same upon another trial.

The most serious question arises from another criticism of the charge relative to manslaughter. After instructing the jury generally with reference to what is meant by the...