Johnson v. State

• Decision Date: 19 December 1888
• Citation: 10 S.W. 235
• Parties: JOHNSON <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 235

10 S.W. 235

JOHNSONv.

STATE.

Court of Appeals of Texas.

December 19, 1888.

Appeal from district court, Taylor county; T. H. CONNER, Judge.

John Johnson was convicted of murder in the second degree and appeals. The killing occurred in a gambling room, which adjoined a drinking saloon, and in which defendant and deceased, Gilstrap, had been gambling. The evidence showed that after a quarrel at the card table, during which Gilstrap claimed that defendant was cheating him, and seized two dollars from the table, which defendant insisted he should return, defendant left the room. He returned in about five minutes, and again demanded that deceased should return the money, and the latter refusing, the fatal difficulty ensued. Witnesses for the defense testified that defendant declined to fight, and that Gilstrap rushed upon him with an open knife in his hand, when defendant retreated a step or two, produced a pistol, and fired the fatal shot. Witnesses for the state testified that the shot was fired after Gilstrap had made an effort to escape, and when he seemed to be trying to catch defendant. The state proved that Carmichael, a witness who had testified before the coroner's inquest over the deceased, had removed from Texas, and was permanently residing in Chicago, Ill., and then reproduced his testimony given before the coroner.

C. J. Evans, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

There was a demurrer to defendant's plea of former jeopardy, but there is no direct or positive evidence in the record that any action whatever was taken by the court, either upon the demurrer or the plea, and counsel for appellant makes no mention of the matter. According to settled practice it will be considered that the plea is waived by appellant. State v. Thompson, 18 Tex. 527.

A proper predicate was laid for the introduction of the testimony of the absent witness Carmichael, as given at the coroner's inquest; said witness being shown to be beyond the jurisdiction of the court. Conner's Case, 23 Tex. App. 384, 5 S. W. Rep. 189; Parker's Case, 24 Tex. App. 61, 5 S. W. Rep. 653.

Most of the errors complained of and insisted upon in the brief of counsel are directed at various paragraphs of the charge of the court upon the law of manslaughter and self-defense. Two of the paragraphs seriously insisted upon as erroneous, in which the court announced the law with regard to the existence of adequate cause, and provoking a contest with intent to kill, are literal copies of articles 602 and 603 of the Penal Code, and have been the law of this state, at least since the adoption of our Codes.

We are of opinion, however, that error has been committed by the learned trial judge prejudicial to the rights of the defendant in his application of the principles of the law of self-defense to the evidence, and for which the judgment will have to be reversed. Among other matters the court instructed the jury as follows: "If you should find from the evidence that prior to the shooting the deceased forcibly and without defendant's consent seized...