Hurst v. State, 24011.

• Decision Date: 28 April 1948
• Docket Number: No. 24011.,24011.
• Citation: 210 S.W.2d 594
• Parties: HURST v. STATE.
• Court: Texas Court of Criminal Appeals

210 S.W.2d 594

HURST v. STATE.

No. 24011.

Court of Criminal Appeals of Texas.

April 28, 1948.

Commissioners' Decision.

Appeal from District Court, Tyler County; Clyde E. Smith, Judge.

J. W. Hurst, Jr., was convicted of murder and he appeals.

Judgment reversed and cause remanded.

H. A. Coe, of Kountze, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

For the murder of Arthur Morris Lumpkin, Jr., appellant has been condemned to serve two years in the penitentiary.

Appellant's father owned and operated "Dad's Place," a beer tavern and dance hall in Hardin County. Appellant was employed as the "bouncer" to maintain order and keep down trouble in the place. The father had provided the bouncer with a "slapjack," a weapon of leather covering a hard substance and about two inches wide at the widest part.

The sheriff of the county testified that a "slapjack" is "for an officer to use to hit with, but it will not leave any cuts on the outside; it is advertised for knock out. It is advertised and used by officers as a knock out."

At the request of the father, the sheriff had purchased for him four of the slapjacks. The appellant and his father carried a slapjack on their persons at all times while a dance was in progress. On the night of May 10, 1946, a fight occurred between some parties across the road from the tavern. Deceased was a bystander and not involved in or connected with the fight. The fight was stopped and soon thereafter another fight, growing out of the first encounter, broke out near the entrance to the tavern. Deceased was not connected therewith.

According to the testimony of the witness Van Pelt, appellant — the bouncer — came out of the dance hall and said: "`All right, boys, we can't have this. I want you all to go.' He said it in a pretty nice way, `You have got to go, and have got to leave.' And he said, `I ain't leaving; I bought me a ticket and I am going back in and dance.' Lumpkin (deceased) said that. He had it pinned on him, and he told him he was going back in and dance. Then he started hitting him. He started hitting him, I guess, ten or fifteen times back of the head. He went down like this and he kept hitting him."

The hitting referred to was with a slapjack, inflicting injuries to the head, as a result of which deceased died about three hours later of cerebral hemorrhage.

According to the State's witnesses, the attack by appellant was entirely unprovoked and unjustified.

According to the theory of the appellant, as shown by his testimony and that of others, the deceased attacked appellant when he came out of the dance hall in answer to the call of his father and cut at him with a knife having a blade of three or three and a half inches in length. Appellant denied any intent to kill, saying that he struck deceased only twice with the slapjack while backing away from deceased and in defense against the attack of deceased with the knife.

The trial court gave a comprehensive charge to the jury upon the law of self-defense, the effect of which was to instruct the jury that if deceased was making or about to make an attack on the appellant, which, viewed from his standpoint at the time, caused the appellant to have a reasonable expectation or fear of death or serious bodily injury and, as a result thereof, appellant struck and killed the deceased, he would not be guilty and should be acquitted.

The trial court, however, made no application of the law touching the presumption arising from the use by deceased of a deadly weapon, as contained in art. 1223, P.C., which reads as follows:

"Presumption from weapon of deceased

"When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or...