Johnson v. State

• Decision Date: 26 November 1919
• Docket Number: (No. 5368.)
• Citation: 216 S.W. 192
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W. 192

JOHNSON v. STATE.

(No. 5368.)

Court of Criminal Appeals of Texas.

November 26, 1919.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Henry Johnson was convicted of murder, and he appeals. Affirmed.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 20 years' confinement in the penitentiary.

The evidence is to the effect that appellant and deceased, a woman, had been living for several years in adultery, and had had a number of serious troubles; that she had on more than one occasion used a knife upon him, and once had struck him on the leg with an axe. She seems to have been, from the testimony, a woman of unusual high temper and of decided physical courage. We deem it unnecessary to go into a detailed statement of the troubles occurring between appellant and deceased.

Shortly prior to the homicide the deceased had taken up with another negro by the name of James Riley. This was rather displeasing to appellant. On the evening preceding the fight at night appellant claims he gave his mistress some money, or bought her a pair of shoes to attend some character of church gathering. Without his knowledge, as claimed by him, she went to a dance, in the country two or three miles, with James Riley. Appellant says he was not aware of that fact, and thought she was at the church social. He went also to the dance. Upon reaching there he found the deceased and Riley present. Shortly afterward a difficulty occurred, in which appellant stabbed Riley and killed deceased.

The state's theory of the immediate transaction was that Riley was sitting or standing near a piano in the room, which was being played for the benefit of the dancers. Appellant approached Riley and engaged him in conversation; brought on a difficulty with and stabbed him; that deceased ran out of the door, followed by appellant. As appellant went out upon the gallery, or just off the gallery, he encountered deceased, and immediately attacked and killed her. Appellant's theory was that the deceased had a knife or went to where Riley was, and Riley gave her a knife, which he observed, and he went over and asked Riley why he gave deceased that knife; that he knew that she intended to kill him with it; that Riley called him a liar and struck him, and the fight began. His further contention is that while he and Riley were engaged in this trouble deceased ran up behind him, and was striking him in the back, as he thought, with a knife, and that the fight continued until they passed out of the door and on to the gallery, and perhaps the ground, and that he killed deceased under those circumstances. This presents the issues of murder, manslaughter, and self-defense.

Some of the language of the charge on manslaughter is made the subject of criticism in appellant's exceptions. Among other things in the charge on manslaughter the court gave this:

"An assault and battery by the deceased, Tennessee Kitchens, and James Riley, or either of them, provided the defendant believed they both were acting together and causing pain or bloodshed, provided such assault occurs at the time of the killing, or so near the time that the party receiving such assault and battery would not have time to be capable of cool reflection."

This is an excerpt from the charge and made the subject of exception. The exception, specifically pointed out, is to the language as follows: "Provided the defendant believed they both were acting together and causing pain or bloodshed." His proposition is that, if either of them were acting alone and causing pain or bloodshed, defendant's right of self-defense would be just as complete on the ground of manslaughter as if he believed they both were acting together. Appellant's whole theory of the case is based upon the idea that the two, Riley and deceased, were attacking and fighting him in the dance room near the piano. The issues are sharply drawn. The state's theory did not present the issue of manslaughter from any angle of view as we understand this record. So it may be stated that any question of manslaughter suggested was from the testimony introduced by the defendant, to wit, that they were both acting together, in their attack on him. The court, however, in quotation above criticized, authorized manslaughter if either was so attacking appellant.

There is also an exception to another portion of the court's charge on manslaughter. That phase of the charge reads as follows:

"That the deceased and James Riley had combined, if they had, or if the defendant believed they had, to do the defendant some bodily harm, or kill him, and that Riley had given the deceased a knife to cut the defendant with."

The reason given is that—

"Said second section would be just as complete in favor of defendant without the necessity of Tennessee Kitchens and James Riley acting together and without defendant having to believe they were acting together, and such defense was complete without the necessity of defendant having to believe that James Riley had given Tennessee Kitchens a knife, if defendant believed that she had a knife, whether it was given to Tennessee Kitchens by James Riley or not."

The same may be said of this as of...