Huddleston v. State

• Decision Date: 30 April 1913
• Citation: 156 S.W. 1168
• Parties: HUDDLESTON v. STATE.
• Court: Texas Court of Criminal Appeals

156 S.W. 1168

HUDDLESTON v. STATE.

Court of Criminal Appeals of Texas.

April 30, 1913.

Appeal from District Court, Wise County; F. O. McKinsey, Judge.

George Huddleston was convicted of manslaughter, and he appeals. Reversed and remanded.

McMurray & Gettys, of Decatur, for appellant. W. C. Shults, Co. Atty., and R. F. Spencer, Jr., Asst. Co. Atty., both of Decatur, and C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter; his punishment being assessed at two years' confinement in the penitentiary.

The indictment contains two counts; the first charging that appellant killed the deceased, Ben Motley, by stabbing him with a knife, and the second by stabbing him "with some sharp instrument." The second count of the indictment is attacked as being insufficient; that the simple allegation stabbing him with some sharp instrument is not a sufficient designation of the instrument with which the stabbing occurred. We are of the opinion this contention is correct. Where the instrument used is not known to the grand jury or cannot be obtained by reasonable diligence, then it is incumbent upon the grand jury to allege, in addition to the fact that it was a sharp instrument or blunt instrument, etc., a further description is unknown to the grand jury. We would suggest that, if it is thought necessary to prosecute this case further, another indictment be preferred charging the offense in conformity with the decisions and the well-understood jurisprudence. The above has been the rule in Texas, and many cases have been decided by this court involving this principle since the case of Jorasco v. State, 6 Tex. App. 238, as well as other cases involving this direct question. See Drye v. State, 14 Tex. App. 185; Jackson v. State, 34 Tex. Cr. R. 39, 28 S. W. 815.

It is also urged that the court erred in authorizing the jury to convict on the second count in the indictment. Taking up this matter as presented not only as above alleged but as here presented, connected with the charge, we would say that the court did err in submitting this, inasmuch as the indictment did not sufficiently charge the offense, and in response to another question growing out of this phase of the case would say that the conviction cannot be sustained predicated upon this count. The evidence fails to show that defendant, if he was the party who inflicted the wound, had a knife; in fact, no witness testified that he had a knife or any sharp instrument. The two witnesses relied upon by the state to connect the defendant with the transaction testified they did not see him have anything in his hand, and there were others engaged in the "free for all fight" that was going on at the time deceased received the wound from which he died. It would seem satisfactorily apparent that the jury did not convict under the first count, because no witness testified to the fact that appellant had a knife, even if he was the party who inflicted the injury; and, if the jury concluded that he was the party who did the injury, they could only do so from the fact that he was engaged in the trouble in which the injury was inflicted.

This brings us to another proposition urged by appellant, to wit, the court not only failed to charge on circumstantial evidence but refused to give a requested instruction submitting this theory of the law. We are of the opinion that, under the authorities, this proposition is correct. The evidence shows on the night of the trouble a social function and dance was being carried on at the home of the deceased. Appellant was a comparative stranger to deceased and his wife, and there had been no difficulty or unpleasant words or occurrences happening between appellant and the deceased prior to the tragedy. Deceased had had some trouble with another party, but appellant was in no way involved in that trouble. Appellant had danced one set with the wife of the deceased and had gone out of doors with one or two friends. Directly the deceased came out in company with a friend and walked out in front of the house through a gate, which was to the east of the house, and 10 or 12 steps into the public road. Off a short distance several parties were engaged in an angry altercation, and some of the witnesses say they were fighting. Nearby there was another crowd, but beyond those engaged in the mêlée. The state's witnesses put appellant with the crowd that was fighting; others put him with the other crowd. The deceased, hearing the altercation, became somewhat indignant from the fact it was going on at or near his residence, and remarked to the friend who was with him he would go down and stop it or make them leave, or some similar expression, further stating he would not permit such things to go on at his house or near his home. He went to where the crowd was, and the state's witnesses say the mêlée continued, and it appeared to one of the witnesses that all of the crowd which deceased approached jumped on and began fighting him. The state's testimony, without going into detail, is to the effect that appellant was with this crowd and struck two licks at the deceased, as the witnesses term it, striking at him "overhanded." It seems to have occurred this way: That while they were fighting one of the witnesses pulled off the man whom the other witness says was appellant; that before pulling him off h...