Snell v. State

• Decision Date: 06 December 1890
• Citation: 15 S.W. 722
• Parties: SNELL v. STATE.
• Court: Texas Court of Appeals

15 S.W. 722

SNELL v. STATE.

Court of Appeals of Texas.

December 6, 1890.

Appeal from district court, Greer county; G. A. BROWN, Judge.

This conviction was for manslaughter, under an indictment which charged the appellant with the murder of Joe B. Whitefield. The penalty assessed was a term of two years in the penitentiary. The proof shows that the deceased received the wounds, which terminated fatally, on Friday, May 23, 1890. On Saturday, May 24th, he made the statement in writing hereinafter set out as his dying declaration. He died on Saturday, June 1, 1890. The predicate upon which the statement was admitted in evidence as a dying declaration was established by the testimony of the state's witness Warren. Warren testified that he was with the deceased on the day preceding his death. Deceased's father and mother, Justice of the Peace Ice, and Mrs. Redding were present. Mrs. Redding, at the dictation of Squire Ice, wrote a complaint charging the defendant and his brother Sam and his father, S. W. Snell, with an assault with intent to murder deceased. The deceased signed and swore to that complaint before Squire Ice. Deceased's father then asked him if that complaint stated the truth. Deceased replied: "I have sworn to a statement before the officers before, and that statement is true. I will never swear anything but the truth. I have sworn to this once before, and I will make no more statements." At this time the deceased was sane, but was expecting to die, and had no hope of recovery. Justice of the Peace Fletcher testified for the state that on the day after the cutting of the deceased he called on the deceased to take his written statement. The deceased was then sane. He did not say that he expected to die, but that, as he did not know what might happen, he wanted to make his statement. What he said was not said in answer to interrogatories calculated to elicit any particular statement. The state then read the statement in evidence as the dying declaration of deceased. It reads as follows: "Charlie Snell and I had some words about his having torn down the gap in my fence, when Sam Snell came out and said, `God damn you, jump on some one of your size.' I then said, `Get out here in the road.' He, Sam Snell, had a claw-hammer in his hand. I pulled a stick from the fence, and Sam Snell told me to put down the stick. I told him to put down the hammer. I then threw down my stick, and he threw down the hammer. By this time old man Snell came to where we were, and told Sam to go to the house. Sam said, `By God, I don't have to.' He, Sam, then said I was a God damned liar, and I then came through the fence, and called Sam a liar. Sam then tried to get the stick that I had thrown down, and I ran against him and pushed him over the stick. Sam then put his hand in his pocket to get his knife. I then clinched his hand in his pocket, and as I did this Charlie Snell got the stick and aimed a blow at my head. I let go of Sam to get the stick, and, as I turned, Sam Snell cut me in the back with his knife. When he cut me in the back I fell. After I fell, and while I was on the ground, Sam aimed a blow at my throat, and I knocked the blow up, and the knife struck me in the forehead. He then cut me in the breast. I then kicked him off of me with my feet, and as I rose he cut me on the shoulder. I then looked around, and Charlie Snell had started at me with his knife open, and old man Snell stopped him. I then saw that they were aiming to kill me, and ran off. I had no weapons to defend myself with but my fists. J. B. WHITEFIELD. Sworn to and subscribed before me this 24th day of May, 1890. E. R. FLETCHER, J. P. Prect. 1, Greer Co."

S. W. Snell, the father of the defendant, testified, in substance, for the defense, that a few minutes before the cutting he, from a distance of about 125 yards, saw the deceased strike or strike at the defendant across the fence. He went to that place at once, and told deceased that he wanted no difficulty there. Deceased said that the defendant had thrown down his gap. Witness said to him: "If you will ask Maggie Snell, Mrs. Stinson, and Miss Alma Thornton, you will find that Charlie did not throw down the gap." Deceased replied: "If the women threw it down, I have nothing more to say." He then turned to the defendant and Sam Snell, called them damned sons of bitches, and proposed to whip them both if they would cross the fence. Sam said to him, "I will show you that I am not afraid of you," and crawled through the fence into he lane. Before Sam straightened up, the deceased struck him. They clinched and fell, with the deceased underneath. Deceased and Sam then got up. Deceased ran at once for a club about 20 feet away. Defendant ran for the club at the same time. They met at the place where the club was lying, and deceased stooped to seize it. At this time Sam closed in upon the deceased. They clinched and fell, and at that instant the defendant got the club, and threw it over the fence. Witness was standing immediately behind the deceased when he, deceased, started for the club. He then saw no blood on nor rent in the deceased's shirt. As deceased rose from the ground after his second fall the witness saw that he was cut, and ordered Sam to stop, which Sam did. Deceased then started home. Witness, starting towards him, asked him, "Joe, are you hurt much?" He replied: "God damn you, don't you come about me!" Witness said to him: "I don't mean to hurt you, and I am very sorry this has happened." He then helped deceased to his house, put him to bed, and sent a boy for the doctor. The defendant, in his own behalf, testified substantially as did his father, and, in addition, that he ran for the club at the...