Simmons v. State

• Decision Date: 02 November 1892
• Citation: 20 S.W. 573
• Parties: SIMMONS v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 573

SIMMONS v. STATE.

Court of Criminal Appeals of Texas.

November 2, 1892.

Appeal from district court, Hunt county; E. W. TERHUNE, Judge.

Lee Simmons was convicted of murder in the second degree, and appeals. Reversed.

Gilbert, Perkins & Gilbert, Mason & Huffar, and Yoakum & Looney, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

HURT, P. J.

This appeal is from a conviction of murder in the second degree. The evidence shows that Williamson, the deceased, had gone to Simmons' gin on two occasions on the day of the homicide, inquiring for appellant, threatening to kill him on sight, and charging him with having insulted Delia Evans, who was deceased's stepdaughter. On both occasions the deceased was armed with a gun. After the second visit of deceased to the gin, Robert McCorkle and his wife, defendant's wife, and defendant's father, all being advised of the charges, threats, acts, and conduct of deceased, were at the house of defendant, which was about 75 yards from the gin. Defendant had just returned home. All the parties at the house advised appellant to arm himself. They talked about what was best to do, and while they were talking the deceased rode up to the gin with a turn of corn on his horse. This was his third visit to the gin that evening. On this occasion he had no gun. He got off his horse, took off the sack of corn, and sat down near the mill house. Appellant and McCorkle and his stepbrother, Darnell, started over to the gin to talk to deceased, and see if they could not compromise the matter by telling deceased where appellant had been during the day. Appellant started without his gun, but turned back and got it. Appellant and Darnell stopped at the gin lot gate, and McCorkle went to where the deceased was, and told deceased that he had seen appellant, and that he had not seen Delia Evans that day. Deceased replied that appellant need not deny it. After some further conversation, McCorkle returned to the gate, and told appellant that deceased said "he need not lie to try and get out of it; that he had done what the girl said." Defendant said, "I will go and see him myself," and went to the lot where deceased was. At the time deceased and Robert McCorkle walked out from the gin to talk together, Turner Ursery followed them out, and overheard the conversation between them, and saw McCorkle go to the gate where appellant was. Ursery testified to the facts immediately connected with the homicide in substance as follows: After McCorkle left deceased, Ursery remained standing by the bale of cotton where deceased was, and said to him, (deceased:) "Hud, it would be better to settle this without a fuss, if you can settle it by law." Deceased replied: "I aint got any money to go to law." Ursery said "Carry it to the law; that will be better than to have a fight over it." Deceased replied: "God damn him, I will kill him, if they send me to hell in a minute." About that time deceased said: "Go back from here; go back from here," — and motioned his hand in a southerly direction. Ursery straightened up from the bale of cotton on which he was leaning, and saw appellant standing there with his gun, he having walked up from the gin-lot gate, where he had left McCorkle. He was holding his gun in his right hand, and was about 12 feet from deceased. Deceased came around the bale of cotton, like he was going to appellant, and when he got in front of the muzzle of the gun Ursery stepped forward, and turned the gun around with his right hand, and deceased sprang forward and caught the muzzle of the gun with his left hand. Deceased and appellant jerked the gun backwards and forwards a few minutes, and then appellant caught the gun barrel with his right hand, and turned it to deceased's breast. Then Ursery grabbed the gun with his right hand, and shoved it back with his left hand. This threw the parties some few feet apart, and then appellant said, "I haven't seen your girl to-day." Deceased replied, "You are a damned liar," and started towards appellant. Deceased had a knife in his right hand. Appellant said, "Don't come on me." Deceased kept coming on towards appellant, and got within about six feet of him, and had his knife in a position to strike. He had his left hand shut up, holding it in front of his breast. Ursery sprang forward between them, and said, "Let us not have any of this, boys." Deceased then drew up his right hand in a position to strike, and appellant pushed his gun under the arms of Ursery, and fired. At the time the gun fired, deceased had his right hand up a little over his head, grasping the knife in it by the handle, with the blade sticking out from the lower side of the hand, and pointing forward. Ursery was between them, but did not have time to strike the gun before it fired, for he says: "When I sprang forward, and threw up my arms, defendant `jobbed' under them, and fired." Deceased staggered back two or three steps, and moved backwards and forwards a time or two, and died in a short time. Appellant's gun was a short, single bar relled shotgun. This statement will be sufficient to enable us to properly appreciate the importance of the questions presented that we deem necessary to discuss in disposing of the case.

Counsel for appellant contends that the court erred in refusing to permit appellant to prove that while he was in his house, and in conversation with relatives, at the time when they saw deceased go to the gin, his mother-in-law, Mrs. Melissa McCorkle, upon seeing deceased at the gin, advised him (appellant) to go to the gin, and tell deceased that he had been to the graveyard prairie, and had not seen Delia Evans, and had not insulted her, and that his father-in-law and stepbrother and other relatives all approved of this course. A bill of exceptions shows the...