Morrison v. State

• Citation: 47 S.W. 369
• Parties: MORRISON v. STATE.
• Decision Date: 12 October 1898
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

47 S.W. 369

MORRISON v. STATE.

Court of Criminal Appeals of Texas.

October 12, 1898.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Tip Morrison was convicted of murder in the second degree, and he appeals. Reversed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of 20 years; hence this appeal.

In his motion for a new trial appellant excepted to the action of the court in failing to charge the law of justifiable homicide, and also because the court failed to charge the jury on the law of manslaughter; appellant's contention being that the evidence required a charge on both defensive theories. On an examination of the charge we find that the court charged for the state murder in the second degree, and the only defensive charge given was a charge on self-defense. There were only two witnesses to the facts attending the killing. One of these, to wit, John F. Rodriguez, was introduced by the state, and the defendant testified on his own behalf. The testimony of the state's witness clearly established an unprovoked murder by lying in wait. This witness states: That he was in the vicinity of the Devine House, in San Antonio, near which the homicide was committed, on the night in question, for the purpose of grazing his mare. That while in that vicinity he saw the defendant come up, and crouch down on the street, near some bushes. Presently he saw the deceased and Jennie Morrison, the wife of the defendant, come along from the direction of the Devine House. As soon as they passed, the defendant ran across the street, and shot the deceased in the back, inflicting upon him a wound which caused his death. That defendant then ran off, and witness did not go to the body, but went back to his home. The defendant himself testified that he shot deceased. He states he had reason to believe that deceased was committing adultery with his wife; that on that particular night he was informed by one George Wright that his wife was to meet the deceased at the Devine House, where deceased was working as a domestic, and he went with Wright to the premises; that he saw his wife in the room of the deceased; deceased was then in another room, washing dishes; that he and Wright got under the house and under the room of the deceased; that after a while he heard deceased come in the room, and he heard deceased and his wife get on the bed in the room, and he states that he heard them copulate; that they remained there about an hour; that he heard them get up off of the bed, and that he and Wright then got off about 35 steps, and stood in the dark, near the privy, and that he saw deceased and his wife come out of the room together; that he and Wright went around another way, and intercepted the parties; that he came up behind them, and as he approached he said to his wife, "I have caught you," and she replied, "For God's sake, don't disgrace me on the street." Walker Richardson, the deceased, said, "He is nothing but a common Southern cur," and that he replied, "You are a son of a bitch." The deceased broke, to run on him, and that when he got pretty close he hit him with his six-shooter; that deceased wheeled out of the way, and he gave him a kick, and that when he got him down there he shot him; that deceased had a six-shooter at the time; that after he shot him deceased told him that he was dead, and not to shoot him any more; that he led him up to the corner, and that he and George Wright left him; that George Wright picked up the pistol. Appellant stated that it was his intention when he came up to the parties to give his wife a beating with the six-shooter, and leave her alone; that it was not his intention to kill deceased; that deceased took it up, and he had to kill him. If this statement of appellant is true then, evidently, deceased, Walker Richardson, and defendant's wife were guilty of adulterous intercourse in the room of the deceased on the Devine premises. The circumstance of their meeting and being there was such as to induce the reasonable belief on the part of the defendant that they were engaged in adulterous intercourse and the parties had not separated when defendant came up with them. If this was the motive that actuated appellant in the homicide, then, unquestionably, under article 672, Pen. Code 1897, he was justified in taking the life of the deceased. See Price v. State, 18 Tex. App. 474; Massie v. State, 30 Tex. App. 64, 16 S. W. 770. However, it is stated that appellant did not assign this as the motive for the homicide, and that, consequently, the court was not required to give this article in charge. Undoubtedly, if the defendant's testimony is to be believed, the attack by him on the deceased was superinduced by the conduct of the deceased towards his wife; and we do not believe the court was authorized to overlook this phase of the case, notwithstanding appellant himself assigned the killing to another cause, to wit, that he was about to attack his wife on said account, as she was to blame for going to the room of the...