Luttrell v. State

• Decision Date: 16 April 1913
• Citation: 157 S.W. 157
• Parties: LUTTRELL v. STATE.
• Court: Texas Court of Criminal Appeals

157 S.W. 157

LUTTRELL v. STATE.

Court of Criminal Appeals of Texas.

April 16, 1913.

Rehearing Denied May 28, 1913.

Appeal from District Court, Jack County; J. W. Patterson, Judge.

J. P. Luttrell was convicted of an assault with intent to kill, and appeals. Affirmed.

E. W. Nicholson and W. E. Fitzgerald, both of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

This is the second appeal in this case. The other is reported in 143 S. W. 628. This trial resulted in the conviction of appellant for assault with intent to kill, and the lowest penalty was assessed against him. The general features of the case are shown by the former report thereof. The case this time was tried in accordance with the former opinion, and the errors there pointed out were corrected and avoided. The case seems to have been more fully and better developed on this trial. The testimony, as shown by this record, in several particulars is quite different from that reported on the other trial. We will therefore state the leading features of the testimony as shown by this record on this trial.

The name of the assaulted party was clearly shown to be, as alleged in the indictment, Edward Oscar Williams. For some time before this offense was charged to have been committed appellant and Williams were good friends, near neighbors, and were frequently together. They were both married men and had families. A few days before this difficulty, which occurred on December 21, 1910, both parties had been drinking considerably, appellant more than Williams, and appellant had been quite drunk. It seems they were both, more or less, drinking at the time of the difficulty. Williams had sold appellant some seed cotton, and also a few days before had picked cotton for appellant. Appellant owed him for this cotton and for picking cotton. On the morning of the difficulty they had together hitched up a wagon, using as a team one horse of each of them, and had carried this cotton to a little town a few miles from where they lived, and just after dinner appellant sold it in the seed to a gin man in payment of which the gin man had given appellant a check for the full price. Appellant and Williams went together from the ginner to a merchant in the little town, and this merchant cashed the check, paying appellant the full amount thereof in money. Williams was with appellant at the time. As soon as appellant was paid the money he paid Williams for the cotton that he had bought from him, but did not pay him what he owed him for picking. They left the store and went out in the town somewhere, or at least, went out of the store. Some little time after this Williams called appellant's attention to the fact that he had only paid him for the cotton, but had not paid him for the picking and owed him therefor. It seems that this amount was $1, though it is stated by some to have been $2. When Williams told appellant that he had not paid him what he owed him for the picking, appellant claimed that the merchant who cashed the check paid him at the time he cashed the check. Williams denied this. It seems that then both parties became irritated somewhat over this dispute. Appellant proposed to go back to the merchant and prove it by him that he (the merchant) had paid Williams what appellant owed him for the picking; that thereupon together they went back to the merchant. Appellant asked the merchant if he (the merchant) had not paid Williams what he (appellant) owed him for picking at the time he cashed the check. The merchant stated that he had not, but that he had paid all the money to appellant, and that appellant then himself paid Williams whatever was paid. This seems to have been $16 and perhaps some cents. At any rate, both of the parties became somewhat more irritated at the turn of affairs. They then again left the store, still disputing about this payment. Williams went to the team, started hitching it up with the view of going home. Appellant did not then want to go home, but instead went across the main street or road of the town some 60 to 80 yards from said store to a blacksmith shop, he says, to get more whisky. Williams then also went over to the blacksmith shop, if not in actual company with appellant, immediately following him. Other parties were along with one or the other of them also. When they reached the blacksmith shop the question of the payment for the picking again arose. At the time of the dispute at the store about the payment for the picking, there were several other persons present. One of these testified that appellant then remarked: "`I, God' or `By God'—something like that—`I will scrap him over it'"; that is, he would scrap Williams before he would pay him for the picking. When they reached the blacksmith shop the trouble was continued. Williams said to appellant: "I will just give you that dollar." Appellant says: "No, you won't. I don't want your money." Williams said: "Yes, you do. I will give you the dollar." Appellant said: "No, you won't. I won't have it." Williams said: "It looks very much like it the way you are talking." Appellant then said: "You are a G____ d____ liar." Williams then hit him, and they went to fighting. This remark, as stated by this court in the recent case of Nickerson v. State, 154 S. W. 992, not yet officially reported, was such "that any sane man knows well would provoke a difficulty, if the party to whom it is addressed has any manhood about him." They fought around at this time until Williams got him down on the ground and was hitting him in the face. Appellant holloed to those who were present, several being present, asking them to please pull Williams off of him. Two of the bystanders asked Williams to get off of him and not beat him any more, which Williams voluntarily did. He was not forced off of appellant, nor pulled off of him. As soon as appellant got up he began looking for something with which to strike Williams and found and picked up a good big piece of plank three or four feet long and struck Williams therewith. Williams in order to ward off the force of the blow of the plank, ran towards appellant so that the plank struck him on the shoulder about midway and broke. They began fighting again, and fought around for some time until they again got upon the ground. Which threw the other, is not made clear. Williams landed on top and began fighting appellant again, each doing what he could against the other. Appellant again called to the bystanders, begging them to take him off. Williams asked him if he would get off of him, would he (appellant) quit and let him alone. Appellant expressly stated that he would do so. Thereupon Williams again got off of him and desisted from fighting him or beating him. As soon as appellant got up again he got out his knife to again attack Williams, when the bystanders interfered, caught his hand, and took the knife away from him. Appellant then proceeded again to hunt something with which to strike Williams. Williams in the meantime started away from him back towards the wagon. Appellant finally picked up a large rock and attempted to assault Williams with it. The bystanders again interfered and took the rock away from him. In the meantime Williams, with another friend, was leaving the blacksmith shop and had gotten some distance therefrom, nearly to the wagon. His back was towards the blacksmith shop and towards appellant. Appellant had two pocketknives with him. The first one with which he attempted to assault Williams, and which was taken away from him, was a little penknife belonging to his wife, which he had procured that morning before leaving home. But while he was at the store, after cashing the check by the merchant, he had borrowed another pocketknife from the merchant, and had that with him at the time this fight occurred. While Williams was going to the wagon, accompanied by one of his friends, appellant got out this borrowed pocketknife, opened it, and started after Williams again. Several parties saw him open and have the knife in his hand, and saw that he was pursuing Williams; they thereupon holloed to Williams that appellant was after him with a knife and to look out. Williams knew nothing of this until thus warned; when thus warned, appellant had gotten within a few steps of him, and Williams turned, facing appellant, with the intention of protecting, and attempted to protect, himself from the renewed assault by appellant upon him with the knife, and perhaps struck at him for that purpose. Appellant, however, succeeded in avoiding his lick, if one was struck at him, immediately seized Williams around the neck with his left hand and arm, and held him fast therewith while with the pocketknife in his right inflicted two most serious wounds upon the body of Williams. Williams' right side was rather towards appellant when appellant had him grasped around the neck. Appellant stuck the knife in Williams' left side and cut a gash clear around towards the front of his body, just below his heart, clear into the hollow; then stabbed him again in his left breast, just a little higher than the first stab and cut. The bystanders were trying at this time to prevent appellant from cutting Williams, and at last, after he had stabbed him twice, succeeded in getting hold of his right arm and pulling him away from Williams, and tried to take the knife from him, or make him give it up, which he refused to do after repeated demands by by-standers, and never did give it up to anybody. The doctor who was called in to attend Williams testified that the first stab and cut was in Williams' left side between the sixth and seventh ribs; that it commenced right by the side or back, around towards the backbone, and came around towards the front or breastbone; that it was eight or nine inches in length, right near the diaphragm that separates the bowels from the heart and lungs, and right below the heart; that it was cut through...