Strickland v. State

• Decision Date: 05 November 1913
• Parties: STRICKLAND v. STATE.
• Court: Texas Court of Criminal Appeals

161 S.W. 110

STRICKLAND v. STATE.

Court of Criminal Appeals of Texas.

November 5, 1913.

Rehearing Denied December 3, 1913.

Appeal from District Court, Houston County; John S. Prince, Judge.

Henry Strickland was convicted of manslaughter, and appeals. Affirmed.

J. V. Lea, of Houston, J. M. Hansbro, of Coldspring, and Adams & Young, of Crockett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for murder, and, when tried, convicted of manslaughter, from which judgment he prosecutes this appeal.

There are two bills of exceptions in the record in regard to the introduction of testimony, one to the action of the court in permitting the witness S. F. Fain to testify, after testifying in what direction the deceased's horse was traveling when near a certain pine tree, that this would put the left side of a man, riding, towards the pine tree. This, it is claimed, is an opinion of the witness, based on a hypothetical question. The witness saw the tracks on the ground and of course could tell as a fact the direction in which the horse was traveling, and it would also be a fact within his knowledge as to which side of a man would be towards a given object on the ground, if he was riding the horse. The body of deceased is shown to have fallen on the ground some 40 steps from where the horse turned near this tree, and, under the facts of this case, the court ruled correctly in admitting the testimony.

The other bill relates to the exclusion of certain testimony. Appellant testified that Andrew Dawson had told him the day of the killing of certain derogatory remarks deceased made in regard to appellant and his sister-in-law, Miss Bertha Dawson, charging them with improper conduct. When his witness Berry Welch was on the stand, he desired to prove by Welch that he (appellant) had told Welch about the matter a short time before the killing. This would be but a self-serving declaration, made before the homicide, and the court correctly held that any testimony tending to show that appellant had been so informed would be admissible, but not what appellant said to some third person he had been told.

The appellant requested the court to instruct the jury that appellant had the right to seek deceased and demand an explanation of the remarks he had heard deceased had made in regard to him and his sister-in-law, and, if he anticipated danger, he had the right to arm himself. In some cases, under the facts in those cases, it has been held that such a charge should be given. But not under evidence similar to that adduced on this trial. Appellant does not claim that he armed himself and went in search of deceased to ask for an explanation of the remarks deceased had made. His testimony is that he went to see Berry Welch about remarks he was informed Welch made, and, when Welch denied making such remarks, that, as he had been informed by his Uncle Charlie Williamson that Welch had made such remarks, he and Welch went to see his Uncle Charlie in regard to the matter. Welch and appellant both so testify, and appellant further testified: "I was not expecting to meet Pack (deceased) there at that time, and we were within a few steps of one another when I first seen him." In no syllable of appellant's testimony is there a suggestion that he was on his way to see Pack to demand an explanation of him, but his whole testimony is that he went to see Welch and demanded an explanation of him, and then was on his way to have Welch and his Uncle Charlie face each other about the remarks he had heard. So, under the testimony, this charge was not called for, and there was no error in refusing it. Appellant shows by his testimony, if true, that his meeting with deceased was purely accidental. However, if he had testified that he had gone to see deceased to demand an explanation, and the shooting occurred in consequence, the court did charge the jury: "The defendant had the right, under the evidence in this case, to arm himself with a pistol, if he thought himself in danger, when demanding an explanation of all persons that he believed had reflected on the character of his sister-in-law." In the case of Williford v. State, 36...