Stacy v. State

• Decision Date: 22 March 1905
• Citation: 86 S.W. 327
• Parties: STACY v. STATE.
• Court: Texas Court of Criminal Appeals

86 S.W. 327

STACY v. STATE.

Court of Criminal Appeals of Texas.

March 22, 1905.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

John D. Stacy was convicted of murder in the second degree, and he appeals. Reversed.

M. D. Carlock, for appellant. W. W. Nelms and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of 20 years.

The application for continuance should have been granted. The difficulty culminating in the homicide was brought about by the conduct of the deceased and his sons toward the son of appellant. There was a question as to whether or not the conduct happened on the part of deceased and his son. This was denied by the state, and affirmed by appellant and his witnesses. On the night preceding the homicide, or on the morning just before the difficulty occurred, appellant had been informed of this conduct on the part of deceased and his boys. This information came from his wife. In this attitude of the case, it became an important question as to whether or not appellant believed the communications of his wife. The continuance was in part sought to obtain her testimony. She would have testified to the facts stated in the application. These were very material. Her absence is accounted for by reason of the fact that she was sick and confined to her bed. There is no contradiction of her condition and inability to attend the trial. This was the first application. The killing occurred on November 23d. The indictment was returned November 26th, and the application was overruled on November 30th, and appellant placed upon trial and convicted. There is no question, in the light of the record, of the diligence, materiality, or the fact that she would have testified to the facts set up in the application. Threats made by deceased against appellant were also expected to be shown. His wife would also have testified these occurred in her presence. Taylor was another absent witness by whom threats were expected to be proved. He was in Arkansas. Interrogatories were propounded, but, on account of the rapidity of the occurrences from the time of the indictment until the trial, it was impossible to get the depositions to Arkansas and answered and returned. This was material testimony, and the diligence sufficient. The testimony of Dr. Marrs was also desired. Sufficient diligence for him was shown. He was in Nacogdoches county at the time, although he lived in Wood county. Process was issued to Wood county, returned not executed, but the return indicated the witness was in Nacogdoches county. Process was issued to that county, but, on account of the brevity of time, it was not served. His testimony was of a material character, and intended to contradict that testimony of Dr. Baber, who testified as to the wound and the direction the shot took through the body. It is alleged that Marrs would have testified differently and favorably to appellant. Without going into a detailed statement further in regard to this application, we hold that it should have been granted.

The charge of the court on manslaughter is criticised. The facts show that on the morning of the homicide, and immediately after appellant learned of the treatment of his boy the previous day, he drove down to the mill owned by deceased, which was about a half mile distant from appellant's residence. Upon approaching deceased, appellant inquired the reason for his mistreatment of the boy. This was denied by deceased and affirmed by appellant. Deceased was leaning over or "squatted down" by a box containing a lot of old irons, and immediately arose to an erect position when appellant spoke to him, with a kingbolt in his hand some 13 or 14 inches long and an inch or more in diameter, and started in the direction of appellant, who told him to "drop it, drop it, or he would shoot him." A son of deceased,...