Johnson v. State

• Citation: 81 S.W. 945
• Parties: JOHNSON v. STATE.
• Decision Date: 22 June 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

81 S.W. 945

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1904.

Appeal from District Court, Tarrant County; Irby Dunklin, Judge.

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

Parker & Parker, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, the penalty assessed being five years in the penitentiary.

Appellant reserved a bill of exceptions to the testimony of the witness Dillard, a deputy sheriff. At the time of the killing, this witness states, he was at the sheriff's office, about 100 yards from the scene of the killing. That, upon hearing the shot, he started towards the square, and en route met a man by the name of Fox and defendant. He asked them what was the trouble, and they told witness about it. That he then told defendant to step inside the sheriff's office, and he did so. He and defendant had a few words behind the door, and he told defendant he would have to take him to jail. Defendant said, "All right." Witness turned and went to jail with defendant. That Fox and defendant began talking, and witness told defendant not to talk; that he did not want to take the stand against them. That witness just remarked to defendant, they wanted to tell him something about it. Witness told Fox not to say anything to him; that he did not care to hear anything about it. That defendant said a few words to him, and witness told him not to say anything about it; that he did not want to know anything about it at that time. That witness was boarding with defendant. That, when defendant said something about the blood on his hands, defendant was under arrest. That witness asked defendant how the blood came on his hands, and defendant replied he did not know. Witness then said, "Uncle Frank, come on to jail." They then started to go to jail, "and, as we were passing down the steps of the courthouse, defendant remarked he was not sorry he shot deceased; saying he was not sorry he shot the damn son of a bitch." Objection was interposed to this testimony because there was no warning given; defendant being under arrest; no sufficient predicate being laid for this statement. It appeared to the court that the statements made by defendant were within a few minutes after the homicide, while defendant was still excited from the occurrence, were freely and voluntarily made by him, and were clearly res gestæ and admissible. This bill was prepared by the court. Of course, this evidence was not admissible as a confession, because defendant was under arrest and had not been warned. This is recognized by the court, and therefore he certifies it was res gestæ. It is not clear from the statements of the bill how long this occurred after the transaction, but it could not have been a very great while, for the court says, a very few minutes. We are of opinion the admission of this testimony was correct. Bateson v. State, 80 S. W. 88, 10 Tex. Ct. Rep. 208.

Exception was reserved to the court's charge on manslaughter. The court gave the usual stereotyped definition of manslaughter under the immediate influence of sudden passion and adequate cause. Among these charges was that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. As an adequate cause, the court instructed the jury that an assault and battery by deceased causing pain or bloodshed is one of the adequate causes, under the law. There was testimony to the effect that appellant was struck by deceased in such manner that it caused pain and bloodshed. There was quite a lot of testimony introduced, showing previous altercations between the parties; that deceased had made threats, and had otherwise...