Mootry v. State

• Citation: 34 S.W. 126
• Parties: MOOTRY et al. v. STATE.
• Decision Date: 13 February 1896
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

34 S.W. 126

MOOTRY et al. v. STATE.

Court of Criminal Appeals of Texas.

February 13, 1896.

On motion for rehearing. Overruled.

For original opinion, see 33 S. W. 877.

HENDERSON, J.

This case was decided at a previous day of this term, and the judgment of the lower court affirmed, and it now comes before us on a motion for rehearing by appellants. If it be conceded, as claimed by appellants, that the court (in the bill of exception taken) certifies "that there was evidence tending to show that the defendants went to the place where Andrew and Tom Prikryl were, not with the intention of killing them, or either of them, but for the purpose of giving them a whipping, and that, from the act of Andrew Prikryl, in attempting to use his gun upon the defendants, and take their lives, it became necessary for the defendants to use more force than was first intended by them in engaging in the difficulty," we cannot concede that it follows, as a necessary conclusion, as insisted by appellants, that the killing was upon adequate cause, and so the homicide was manslaughter. It will be noted that the act of the defendant which caused Prikryl to use his gun in resistance is not stated. From the bill as stated, it appears that the defendants were carrying out their purpose to give the Prikryls a whipping, and, in resistance thereto, Andrew Prikryl, to prevent the same, used his gun, and that then it became necessary for the defendants to use more force than was first intended; that is, to kill the Prikryls, in order to carry out their original purpose. Such a killing would appear to be without any adequate cause; and so, if the killing was upon passion and excitement, it would at least be murder in the second degree. The bill, even according to the contention of the appellants, does not show any provocation on the part of the Prikryls. But for aught that appears, the appellants, in carrying out their original purpose to give the Prikryls a whipping, made it necessary for the Prikryls, in order to prevent the same, to act upon the defensive, and use a gun; and if, then, in order to carry out the common purpose, to kill the Prikryls, in order to accomplish the whipping, the appellants committed the homicide, the case would undoubtedly be one of murder. But, as heretofore stated in the original opinion, this bill of exception is not a certificate that these facts were in evidence, much less that they were all of the facts upon the issue in question.

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