Hollman v. State

• Decision Date: 28 May 1919
• Docket Number: (No. 5361.)
• Citation: 212 S.W. 663
• Parties: HOLLMAN v. STATE.
• Court: Texas Court of Criminal Appeals

212 S.W. 663

HOLLMAN v. STATE.

(No. 5361.)

Court of Criminal Appeals of Texas.

May 28, 1919.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

John Hollman was convicted of manslaughter under a charge of murder, and he appeals. Judgment reversed.

Lawhorn & McNair, of Taylor, and Wynne & Wynne, of Kaufman, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

The appeal is from a conviction of manslaughter under a charge of murder, and punishment fixed at confinement in the penitentiary for three years.

A short time prior to the homicide appellant (who was a youth 19 years of age) and a son of the deceased got into a difficulty, in which the deceased interfered, and angry words passed between him and the appellant. The deceased, according to some of the testimony, applied to appellant insulting epithets and exhibited his knife in a threatening manner. Subsequently they met, and the homicide took place; the appellant striking the deceased one blow on the head with a stick, fracturing the skull. From the state's standpoint the appellant when about 15 steps from the deceased, said: "Mr. Bruce, you called me a son of a bitch, and I came to make you take it back." Bruce replied, "All right," when the appellant struck the blow.

The appellant and his witnesses presented the theory: That appellant, after the first difficulty, was informed by his brother that the deceased was willing to make friends, and that appellant approached him for that purpose, and began the conversation by saying: "Mr. Bruce, if I have said anything to hurt your feelings, I want to apologize, and I think you owe me one for what you called me at the schoolhouse." That the deceased responded by drawing his knife and starting toward the appellant, when appellant picked up a stick that was lying upon the ground to defend himself.

Various exceptions were reserved to the charge of the court and the refusal of requested charges. The stick used was described as a black jack limb, the witness describing it stating, "It was about two or three feet long and about as big as my wrist." This testimony was given by a girl 14 years of age, and we find in the record no other description of the instrument used nor of its character as a deadly weapon. Our statute (article 1147) provides that "if the instrument be one not likely to produce death it is not to be presumed that death was designed, unless from the manner in which it was used, such intention evidently appears," and the court has uniformly held that, in cases where the instrument used was not necessarily a deadly weapon, the court should charge the substance of this article of the statute and inform the jury in appropriate language that if there was no intent to...