Maddox v. State

• Decision Date: 10 February 1915
• Docket Number: (No. 3387.)
• Citation: 173 S.W. 1026
• Parties: MADDOX v. STATE.
• Court: Texas Court of Criminal Appeals

173 S.W. 1026

MADDOX v. STATE.

(No. 3387.)

Court of Criminal Appeals of Texas.

February 10, 1915.

Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.

F. M. Maddox was convicted of manslaughter, and he appeals. Affirmed.

A. S. Baskett, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder, and when tried was convicted of manslaughter, and his punishment assessed at four years' confinement in the state penitentiary.

The facts show that appellant cut and killed Charles Colson on the night of the 6th of July of last year. The evidence would further show, without conflict, that appellant came from his home that night to a moving picture show, and after visiting the show was on his way home when he met Colson. They engaged in a conversation, and while walking along Colson asked appellant if he would take a drink with him, and, upon appellant stating he would, Colson pulled a bottle of whisky out of his pocket, and appellant took a drink out of the bottle. The evidence would further justify a finding that, in a few minutes after taking the drink of whisky, appellant's throat and tongue began to have a numb or dead feeling, when he asked Colson what was the matter with the whisky, and Colson replied it had morphine or coke in it. Appellant says he asked him, "Do you mean cocaine?" and Colson replied, "Yes;" and, when asked what he meant by giving one whisky with cocaine in it, Colson replied, "I thought you were a cocaine fiend, too." Appellant says he told Colson he was mistaken, and Colson replied, "It won't hurt you," and shortly thereafter asked if he would have another drink; appellant declining. To this much of the testimony there is but little, if any, conflict, but from this point there is quite a variance.

The state's witness W. L. Moulder testifies he is a driver for the Dallas Transfer Company, and he saw a part of the difficulty near the transfer barns. He states he saw the parties standing near one of the barns, and appellant said something about there being morphine in the whisky, and Colson replied it did not make any difference; that appellant then struck deceased, and deceased began backing, threw up his hands, and told appellant to let him alone; that appellant kept backing Colson until Colson backed into barn No. 2; that he saw Colson turn as if to run, and appellant struck him in the back; that he saw appellant strike deceased several blows; that Colson never struck appellant at all, but held up his hands and told him to let him alone. Witness says he went in the barn and saw Colson; that he was not then dead, but died in about two or three minutes; that he saw no knife in deceased's possession nor none laying around there.

Frank McDonald says he was sitting on the curb near transfer barn No. 2 when he first saw the two men; that they were then about 150 feet from him, and were talking and quarreling, but he could not understand what they said; that deceased started toward witness, and, to use his own language, witness testified:

"And the other man, Maddox, apparently grabbed him by the coat, and pulled him back. Colson started again toward me, and Maddox was hitting him with his fist (that is, he was striking at him, anyway), and when they got down to where I was — you see I was on the curb, and Colson was coming on toward me, and Maddox was striking him — I stepped out of the way, then, when they came to the curb, they started back into the street again. No, up to that time I had not heard anything that passed between them, that I could understand. Well, they passed into the street again, towards the center, and went down towards the barn door, and went into the barn. Colson was backing backwards some of the time, and some of the time facing him. All I could see Colson doing was holding up his hands and warding off these blows, as near as I could see. They went into the barn No. 2. I stayed out there on the sidewalk. Maddox came out of the barn. I don't suppose it was over two minutes after he went into the barn. I heard him say, `Why don't you quit fooling with me?' He then went into a saloon there, which was about 50 or 60 feet from barn No. 2. I then went in the barn, and, when I found that he was hurt, I came out of the barn. When I went into the barn where Colson was, he was alive. I do not know how long he lived. He was laying on his back and bleeding on his left side. I could see the blood coming through his shirt. I then went up to the saloon where Maddox was. I heard him talking over the phone. He says: `I have cut hell out of a fellow. I am in jail. Come down and get me out.' `I have cut hell out of a son of a bitch. I am in jail. Come down and get me out.' He then went down about 50 feet on the other side of the saloon, where there is a lot where Hurst keeps horses and cows. He went down towards McKinney avenue. No, I did not see Colson strike Maddox."

Thus it is seen that the state's case is that appellant, becoming angry at deceased giving him whisky with cocaine in it, while deceased was trying to get away from him, pursued him, cutting him until deceased fell; that deceased at no time struck or attempted to strike appellant.

Appellant's testimony presents two lines of defense: Temporary insanity, produced by drinking the whisky with cocaine in it, and self-defense. He testified:

That as he was on his way home from the moving picture show he met deceased, who said, "`Hello, friend, where are you going?' And I told him, `I am going home.' He said he was going that way, and walked along with me about 15 feet, and he says, `Will you take a drink with me?' and I says, `I would not mind having one.' I thought he was going to take me to the saloon and have a drink, but he pulled a bottle of whisky from his pocket and handed it to me, and I taken one. I took about two swallows of whisky out of the bottle of whisky which he gave me, and then I handed the bottle back to him, and we went straight on down Griffin street. When we had gone about 15 or 20 feet after taking the drink out of the bottle, my tongue and my throat became numb and dead, and I asked him what in the world was the matter with that whisky, and he said, `It had coke in it,' and I said, `Do you mean cocaine?' and he said, `Yes.' I asked him what he meant by giving me whisky that had cocaine in it, and he said, `I thought you was one, too;' and I said, `You are mistaken; I am not;' and he said, `It won't hurt you.' We then went on down Griffin street, where it crosses the Texas & Pacific Railroad, and he said, `Have another one,' and held the bottle out to me, and I refused to take another one. I thought it was a mighty dirty thing, giving me whisky with cocaine in it. When he told me it had cocaine in it, it scared me, because I did not know what cocaine might do for me. We crossed the Texas & Pacific tracks and went on past Patterson avenue toward Camp street. After we got to Camp street my head commenced to swim. When we got to Camp street, we turned off of Griffin street down Camp street. The man was walking along with me, and he turned on off to Camp street with me. My head felt queer, and my tongue had a funny feeling. We went on out Camp street towards Akard street. We reached the first livery stable on Camp street before I had any trouble with this man. We were talking about him giving me whisky with cocaine in it. I asked him what he wanted to give me whisky with cocaine in it for; and he said, `I thought you was one, too;' and I told him it was a damn dirty trick; and he slapped me. At the time he slapped me, my head was already swimming, and my tongue and throat had a dead feeling. I felt peculiar. When he slapped me, I hit at him. He then got out his knife, and I got out mine, and after that he was cutting at me with his knife, and I was cutting at him; that is as far as I remember. No, I do not remember cutting him."

He further testified he did not remember anything after that until the next morning, when he awoke in jail; that his head was then swimming, he had an awful headache, and his tongue and mouth did not feel right; that his mouth and throat felt dry, and his throat was burning.

Appellant's father testified: That he got word that night his son was in jail, and went to see, and the first thing appellant said was: "Pa, have you come after me?" That he spoke to appellant, and said: "Frank, do you know you have killed a man?" And appellant replied: "I never killed anybody. A man tried to kill me. He gave me some dope." That he was in the jail talking to appellant about five or ten minutes. That appellant's face was red, and his eyes looked glassy, and, from the way appellant talked and acted, in his opinion he was of unsound mind.

Joe Austin, the city detective who arrested appellant, says he was greatly excited when arrested, and talked freely and loquaciously, and his talk was disconnected; that the knife he took off of him had blood on it. The knife was identified and introduced in evidence.

Dr. C. M. Rosser testified and qualified as an expert on insanity. He explained the effect of cocaine on the human system. From the hypothetical question propounded by appellant, based on the evidence offered in his behalf, he testified that in his opinion appellant would be temporarily insane. From the hypothetical question propounded by the state, based on its evidence and theory of the case, the doctor testified that the appellant would not be insane, but his conduct and acts would look like resentment.

So the jury would be left to find whether the hypothetical question propounded by the defendant or the state was founded upon the true state of facts as made by the testimony. Deceased was cut a number of times, both in the back and in the chest, one cut penetrating the heart.

In his brief and argument before this court the appellant seemed to place more stress on bill of exceptions No. 2 than he...