Powell v. State

• Decision Date: 03 March 1890
• Citation: 13 S.W. 599
• Parties: POWELL <I>v.</I> STATE.
• Court: Texas Court of Appeals

13 S.W. 599

POWELL

v. STATE.

Court of Appeals of Texas.

March 3, 1890.

Appeal from district court, Johnson county; J. M. HALL, Judge.

Indictment of W. E. Powell for the murder of John Howard.

Mrs. Bettie Howard, wife of deceased, testified for the state, in substance, that she was the sister of the defendant. The witness, with her infant child, went to her mother's house, where the defendant lived, about a week before the homicide. During that week she was visited three times by her husband, on neither of which occasions was the defendant at home. On the Friday preceding the fatal Sunday morning it was agreed between witness and her husband, in the presence of witness' mother, that deceased should go to Alvarado on Saturday, purchase supplies and furniture for housekeeping, and come for witness and the baby on Sunday. Witness did not know whether or not the defendant was aware of that arrangement, but he saw her packing her trunk on Saturday night. On Sunday morning deceased drove up to the front fence in a wagon, got out, and came into the house. Just before he entered the house the witness heard the defendant say to the deceased: "Howard, don't go in that house." Witness seized a bundle, which she took to the wagon, passing her husband going into the room as she went out. She immediately returned from the wagon, and on her way into the house passed her two brothers, the defendant and Walter Powell, and the deceased, who had her trunk in his hands. Deceased and defendant were quarreling. After passing the parties she heard defendant say: "Howard, didn't I tell you not to go into the house?" Deceased replied "Yes; but it will take a better man than you to keep me out of it." Two shots were then fired in quick succession, and deceased fell. Witness ran to him, raised up his head, and asked defendant: "Willie, why did you do this?" He replied: "He threatened yesterday in Alvarado to kill me." Witness' back was to the parties when the shots were fired, and she could not say what, if anything, the deceased was doing when shot. On her cross-examination, the witness stated that she knew that her husband entertained hard feeling towards the defendant, and that on the Friday preceding his death he told her that he intended to kill defendant. Mrs. Powell, witness' mother, witness' sister Mamie, and a Miss Anthony were in the sitting-room at the time of the killing. Miss Anthony, testifying for the state, corroborated Mrs. Howard as to the conversation between defendant and deceased which immediately preceded the shooting, but stated that she was in the room with her back to the door, and did not see the shots fired. Walter Powell testified for the state, substantially, that when deceased started into the house defendant said to him: "Howard, don't go in that house." Deceased, however, went in, and soon came out, bearing a trunk, when defendant said to him: "Howard, didn't I tell you not to go into that house?" Defendant replied: "Yes; but it will take a d—d sight better man than you to keep me out of it." Deceased then put the trunk down, and threw his right hand to his hip pocket, and defendant fired the fatal shots. Miss Mamie Powell, testifying for the defense, located herself in the room in a position to see the deceased, but not the defendant, at the moment of the fatal shooting. She stated the conversation between defendant and deceased as Walter Powell did, and corroborated Walter Powell in his statement that deceased threw his right hand to his hip pocket immediately before the fatal shots were fired. Other witnesses for the state testified to threats uttered against the life of defendant by the deceased, and it was proved by two witnesses that, after death, an open pocket-knife was found in the deceased's right hip pocket.

The charges of the court referred to in the opinion read as follows: "Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law. By the expression, `under the immediate influence of sudden passion,' is meant that the passion must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment, or terror sufficient to render the mind incapable of cool reflection. By the expression `adequate cause,' as used herein, is meant such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Insulting words or gestures are not of themselves sufficient to reduce an unlawful killing from the degree of murder to the grade of manslaughter. * * * That you may understand the difference between murder of the second degree and manslaughter, you are further instructed that when an unlawful killing takes place under the immediate influence of sudden passion, and there is no evidence which tends to excuse or justify the killing, then, to determine whether the offense is murder of the second degree or manslaughter, the true test is, was there adequate cause to produce such sudden passion? And if there was adequate cause for such sudden passion the homicide, if unjustifiable, would be manslaughter; but if there was not such adequate cause, and if the killing be unjustifiable, the offense will be murder of the second degree. And in this connection you are instructed that while insulting words or gestures are not sufficient of themselves to produce an adequate cause, and reduce an unlawful killing to manslaughter, yet, when taken together, they may be sufficient; where either or...