Hollman v. State

• Decision Date: 25 February 1920
• Docket Number: (No. 5655.)
• Citation: 223 S.W. 206
• Parties: HOLLMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 206

223 S.W. 206

HOLLMAN v. STATE.

(No. 5655.)

Court of Criminal Appeals of Texas.

February 25, 1920.

On Motion for Rehearing, June 25, 1920.

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

John Hollman was convicted of manslaughter and appeals. Affirmed.

See, also, 212 S. W. 663.

Critz, Lawhon & McNair, of Taylor, and Wynne & Wynne, of Kaufman, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of the offense of manslaughter, and his punishment fixed at two years' confinement in the penitentiary.

Appellant was originally charged with the murder of one Bruce, the homicide having taken place on the night of July 4, 1918. It appears from the record that, beginning late in the afternoon of said day, there was a meeting at a country schoolhouse in Kaufman county, which extended on into the night, closing some time about 8 o'clock, and that deceased and his family were present at said meeting; also appellant and three of his brothers.

Appellant was about 19 years old, and lived with his father and two of his brothers a short distance from said schoolhouse; a married brother of appellant living not far away.

Deceased and his family, including his son Eugene, who was about 16 years of age, lived further up the same road.

It seems that at the meeting at the schoolhouse, and before night, a younger brother of appellant had a difficulty with a smaller boy, and that Eugene Bruce remonstrated with appellant's brother for roughly treating the smaller boy. Appellant was nearby, and took offense at the interference of young Bruce, and took a knife in his hand, and began to use rough language to young Bruce, and to curse him; and that the latter told appellant he was a coward to have his knife in his hand, and other words followed; the damn lie was passed, and the two exchanged a few blows. At this time deceased was nearby, and, according to some of the witnesses, urged his son to maintain his side of the difficulty, and according to appellant and his brothers, said at the time that the appellant had been running over them, and that "the son of a bitch had cut his tires a short time before."

Shortly after the difficulty between the two boys deceased and the married brother of appellant had some words, and were kept apart by the interference of bystanders; immediately following which appellant, with his knife in his hand, walked several times around close to deceased and his son.

After the meeting broke up appellant and his brother Docie went to their home, and in a short time his other brothers, Tom and Adolphus, with the wife and baby of the latter, also came to the home of their father; and presently, leaving the wife and baby there, the four brothers left and went back up the road toward the place where the homicide occurred. They seem to have separated just before meeting the deceased, and to have been some little distance apart at the time of such meeting. The married brother, Adolphus, met deceased, and turned back with him to where the appellant was. For some reason Adolphus Hollman was not used as a witness.

Deceased was accompanied at the time by his son Eugene and his two daughters; and their version of the occurrence was that when the parties met in the road appellant accosted deceased, and said, "You called me a son of a bitch, and I have come to make you take it back;" and that deceased said, "All right;" and that almost immediately appellant struck deceased on the head with a club about three feet long; and when deceased fell appellant turned on Eugene Bruce, and struck at him, and chased him down the road, saying that he was going to do him the same way.

Joe Shivers, a witness for the appellant, said he was about 120 or 125 steps distant, and that he heard the lick, and then the screaming.

According to appellant, and those of his brothers who testified, they went down to where they met the deceased, for the purpose of obtaining from him an apology to appellant for the language he had used during the difficulty at the schoolhouse. In somewhat varying language these witnesses testified that when the parties met appellant asked for an apology; that deceased refused to apologize, and jerked out his knife and started toward appellant, who thereupon struck him with a stick. Appellant, while a witness, admitted that a man of his age and strength could kill a man with the stick he used, which he said was as large as his wrist and about two feet long.

The doctor who went to see deceased described his broken skull, and said that a stick capable of causing such a wound would, in the hands of appellant, be a deadly weapon, and that the inevitable effect of such a wound as he found and described would be death.

Noticing the contentions made by appellant in the order in which same are presented in his brief, we observe that he excepted to the court's charge on provoking the difficulty, for the alleged reason that there was no evidence which called for such a charge.

If there be any evidence calling for the charge given, this court will uphold the action of the trial court in giving the same. The entire evidence for the appellant shows that, after the meeting at the schoolhouse ended, deceased started home with his family, and that appellant and his brothers came back in the night from their homes, and placed themselves along the roadside, and that when deceased came by appellant asked him for an apology, which they say deceased refused, and pulled out his knife and started at appellant. Appellant's theory was self-defense, based on said testimony, and he claimed that his only purpose was to get an apology, and that he was forced by the attack of deceased to defend himself. The state's reply to the evidence of appellant supporting this theory was that the words and actions of appellant and his brothers caused the attack, if any, by deceased, upon which appellant could base self-defense.

Admitting the truth of this testimony of appellant for the sake of argument, it would appear that, immediately following the meeting and accosting deceased, the latter started towards appellant with a knife in his hand. Something caused such conduct on the part of deceased, and it seems reasonable to attribute it to the acts and words of appellant, or appellant and brothers. At least it was for the jury to decide, under a proper charge of the court, whether or not such acts and conduct of the appellant, or of appellant and his brothers, produced and caused the attack, which he claims to have given rise to his right of self-defense. There was no exception to the form of the charge on provoking the difficulty, and we think the same was properly given. Appellant has a right to his theory of self-defense, but the state has also a right to have submitted to the jury its theory that the actions of deceased relied on as raising self-defense were the expected results of the provocation arising from the acts and words of appellant, or appellant and his brothers. There is no question as to there being trouble between deceased and his son on one side and appellant and his brothers on the other side at the schoolhouse, nor that after they went home that night appellant and his brothers all came back to the place where the homicide occurred, and were there ranged along the roadside when deceased came up. One of appellant's brothers testified that deceased said, "What does this mean?" and that appellant said he had come down to get an apology, and deceased said, "Apology, hell; I look like apologizing," and started at appellant. These facts and the situation were enough to justify the charge mentioned. Winters v. State, 51 S. W. 1110; Gaines v. State, 58 Tex. Cr. R. 631, 127 S. W. 181; McGrew v. State, 49 S. W. 228; Coleman v. State, 49 Tex. Cr. R. 357; 91 S. W. 783; Smart v. State, 101 S. W. 990; Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496.

Appellant also claims errors in that part of the charge of the court which told the jury as follows:

"But if you believe from the evidence beyond a reasonable doubt that the defendant struck and killed the said W. M. Bruce with a stick, and that he did not intend to kill the said W. M. Bruce by the means used, then you are instructed that the defendant would be guilty of an aggravated assault."

The exception thereto attempts to raise error by carving out a phrase from a paragraph of the charge, which, if taken alone, might not be self-explanatory. This is not permissible. Unless such phrase, when taken with the context, shows error, same will not be so considered by us. The whole paragraph of said charge is as follows, and is not erroneous:

"Now, if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, John Hollman, killed W. M. Bruce, but you further find that the means used in killing the said W. M. Bruce was of such nature as would not likely produce death, or that the defendant did not intend to kill the deceased by the means used, or if you have a reasonable doubt thereof, then you are instructed that the defendant would not be guilty of...