Johnson v. State.

• Decision Date: 19 December 1900
• Citation: 60 S.W. 48
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W. 48

JOHNSON v.STATE.

Court of Criminal Appeals of Texas.

December 19, 1900.

Appeal from district court, Harrison county; W. J. Graham, Judge.

Walter Johnson was convicted of murder in the second degree, and he appeals.Reversed.

W. C. Lane and W. H. Pope, for appellant.Robt.A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at seven years' confinement in the penitentiary, and he prosecutes this appeal.

Appellant excepted to the evidence of Post, on the ground that it was not competent for the state to show by said witness what the state's witness Warren and defendant's witness Fields had stated in his presence in regard to the difficulty.The testimony was clearly competent as to the witness Warren to corroborate and sustain him, inasmuch as the defendant introduced testimony to impeach him, tending to show that he had made statements contradictory to the testimony given by him on the trial.In such case, the state could show that he had made a statement in regard to the matter similar to, and corroborative of, his statement on the trial, shortly after the transaction occurred.As to the witness Fields, who was introduced by defendant, the testimony of Post was admissible to contradict and impeach him.

Appellant contends that the court erred in failing to give a charge on the law of manslaughter.Although we are not inclined to believe there was such provocation on the part of the deceased at the time of the homicide as would require a charge on manslaughter, yet an examination of the record suggests that a charge on this subject was demanded from one point of view.The homicide was committed by a single blow on the head of deceased with a stick in the hands of appellant, which is described as a white-oak stick about three feet long, with square edges, about one and one-half inches by two inches in thickness, and would weigh about four pounds.An eyewitness testified that appellant used both hands in striking deceased, and seemed to hit him very hard; that he struck him just above the left eye, and cut a place through the skin about an inch and a half long.The testimony further shows that deceased lived about two days after he was struck, and died from the effects of the wound.With reference to the intent to kill, under the circumstances of the case, the court gave the following charge: "The instrument by which a homicide is committed is to be taken into consideration in judging of the intent of the party offending.If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner of its use, such intention evidently appears."The court made no effort to apply the provisions of the statute above quoted in the charge to the facts of the case, and it will be noted that he failed to charge on manslaughter or aggravated assault.Our statutes on this subject are found in the Penal Code, from article 717 to article 720; and besides the provisions of the Code quoted in the charge given, which is article 717, it...