Polk v. State

• Decision Date: 02 December 1910
• Citation: 132 S.W. 767
• Parties: POLK v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 767

POLK v. STATE.

Court of Criminal Appeals of Texas.

December 2, 1910.

Appeal from District Court, Colorado County; M. Kennon, Judge.

Ben Polk was convicted of manslaughter, and he appeals. Reversed.

Brown, Carothers & Brown, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of manslaughter, and given the minimum punishment.

The strongest evidence for the state is that of the witness Nick Johnson to the following effect: That he saw appellant kill deceased, Smith. That when he first came to where the parties were, appellant was "squabbling" with Walter Williams. Deceased came up about that time, and appellant asked him, "What have you got to do with this, you black son of a bitch?" Deceased ran and picked up some rocks. Appellant said: "I will take that back. I wasn't talking to you." Deceased put down the rocks. Thereupon appellant got on his horse and rode away, and when about 100 feet distant turned in his saddle and said: "If you will follow me to the bottom of the hill, I'll fight you, you black son of a bitch." Deceased followed him, and the next thing this witness saw was the parties fighting. They threw bricks at each other, and deceased had a quirt with which he was striking appellant. They kept "squabbling," and never got far apart. Finally appellant made a rush at deceased, and deceased fell. Appellant fell on top of him. This witness saw appellant make a motion with his arm, but could not say whether he struck deceased with a knife while they were scuffling, before they fell, or after they fell, nor did the witness do anything to stop the fighting. The witness Gunn, for the state, testified: He saw the killing. That when he first saw the parties they were "squabbling," and struck each other. Appellant was on the ground, and deceased had a quirt. They threw brickbats at each other, and moved off a little distance from where they were standing. One brick thrown by appellant struck deceased on the back. Deceased struck appellant in the body with a brick. Appellant then ran at deceased, and deceased began to run, and they ran 75 or 80 feet, when deceased turned and began to run backwards. He ran in this manner several steps and fell, and appellant jumped on him and stabbed him with a knife. Hurd testified: That he saw the parties on the side of the road. That appellant was cursing, and deceased said to appellant not to curse him. Appellant then told deceased that he "was not any more to curse than any one else." Appellant rode down the hill, and deceased followed. The next thing this witness saw was deceased grabbed appellant's quirt from the apron of appellant's overalls and began to strike appellant with the butt end of the quirt. Appellant picked up a brick and threw it at deceased, but missed him. Deceased threw a brick at appellant, and hit him in the stomach. Deceased ran, and appellant followed. They ran a short distance, when deceased turned with the quirt held back in his hand as if to strike appellant. Deceased stumbled and fell, and appellant jumped on him and cut him with a knife. Another witness, Wade, for the state, testified: The parties were fighting. Deceased had a quirt. They were moving backwards and forwards. Part of the time appellant was advancing and deceased retreating, and part of the time deceased was advancing and appellant retreating. They were never far apart. This witness described the movements of the parties pretty much as did the other witnesses. There is a conflict in the testimony as to whether the knife wound was inflicted before or after deceased fell. All the witnesses who testified in regard to the quirt stated that the handle of the quirt was heavily loaded with iron, and could be used easily to inflict death, and that it was in fact a deadly weapon. Lena Hurd testified she saw part of the difficulty, and saw deceased striking appellant on the side with a quirt, and while so striking he was using the loaded end of the quirt. She also saw deceased throw a brickbat at appellant and hit him in the stomach, which "doubled him up." She saw deceased throw another brick at appellant, which struck him on the leg. She did not see appellant strike deceased. When she was noticing the parties, appellant ran behind his horse, was dodging, keeping the horse between himself and deceased, while deceased was striking him. She says she was passing by when this happened, and did not see any more of the difficulty than related.

The evidence further shows appellant was talking with Walter Williams, whom appellant describes as a sort of religious fellow; that when any one cursed around him he would curse, too, and it generally made him mad; that appellant was cursing to worry Walter Williams, but had not said anything to deceased, when deceased walked up and told him to quit cursing him. Appellant said to deceased that he was not cursing him. A few moments later Williams said something, and appellant...