Ingram v. State

• Decision Date: 15 December 1897
• Citation: 43 S.W. 518
• Parties: INGRAM v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 518

INGRAM v. STATE.

Court of Criminal Appeals of Texas.

December 15, 1897.

Appeal from district court, Hunt county; Howard Templeton, Judge.

Tom Ingram was convicted of murder in the second degree, and he appeals. Reversed.

M. M. Brooks and T. C. Thornton, for appellant. Mann Trice, for the State.

HURT, P. J.

Appellant was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of five years; hence this appeal.

Appellant excepted to that portion of the charge of the court which defines malice. We think the charge was sufficient, and in conformity with the decisions. See Martinez v. State, 30 Tex. App. 129, 16 S. W. 767. An exception was also reserved to that portion of the charge of the court submitting the law applicable to a case of mutual combat. We have very carefully read the statement of facts, and have found no evidence in this record suggesting the doctrine of mutual combat. The testimony in this case presents but two theories. That for the state, if true, makes the appellant the aggressor. After quarreling with the deceased a few moments, he drew his pistol, and shot at the deceased twice. The deceased returned the fire, and the shooting continued until the deceased fell dead. If this be the correct theory of the case, appellant was evidently guilty of murder, and this theory was submitted to the jury by the court. On the other hand, a number of witnesses support the following theory: That appellant was in the house, procuring a drink of water, when deceased spoke to him, inviting him out of the house, and, after quarreling awhile, deceased began to draw his pistol, appellant telling him two or three times not to draw it, backing at the same time. Before this, he had told him that he had a wife, and did not want trouble; whereupon the deceased shot at him twice, striking him once before he returned the fire. The firing continued from both parties until deceased fell dead. As before stated, we have given this statement of facts a careful examination, and find nothing in it requiring the court to submit the question of mutual combat to the jury. A charge on this subject not being justified by the evidence, it was calculated to confuse and mislead the jury. They might be inclined to believe, as the testimony indicated, that after the fight began defendant entered it, and fought willingly; that this would deprive him of self-defense, although he was not the aggressor. Appellant reserved the following bill of exceptions on the trial: "Be it remembered that on the trial of the above-styled case the defendant introduced Peter St. Clair, who testified as follows: `I saw the defendant come into the school house something like a minute after the shooting. He came into the house with blood on his shirt, and said that he was shot. We went on out of the house, to where his horse was hitched, and the defendant said that he believed that he was going to die. I think that his mind was all right at the time that he spoke to me. He did not seem to be very badly excited, but he might have been some excited.' Thereupon the defendant asked the witness what the defendant told witness about the shooting, to which question the state objected on the ground that the same was self-serving. The court sustained said objection, to which action of the court the defendant then and there excepted. The witness would have...