Sunday v. State

• Citation: 177 S.W. 97
• Decision Date: 26 May 1915
• Docket Number: (No. 3568.)
• Parties: SUNDAY v. STATE.
• Court: Texas Court of Criminal Appeals

177 S.W. 97

SUNDAY v. STATE.

(No. 3568.)

Court of Criminal Appeals of Texas.

May 26, 1915.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Andrew Sunday was convicted of murder, and he appeals. Reversed and remanded.

C. W. Nugent and J. T. Rucks, both of Conroe, and Dean, Humphrey & Powell, of Huntsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant, was convicted of murder, and his punishment assessed at eight years' confinement in the penitentiary, from which judgment he prosecutes this appeal.

It may be said to be conclusively proven that George Sunday, a brother of appellant, was a tenant of John Dunks, a man some 70 years of age; that, while George Sunday and appellant, his brother, were gathering their cane crop, some trouble arose between the landlord and tenant. Deceased, Jack Phillips, and George Rabun had married daughters of Mr. Dunks, and after the trouble between Mr. Dunks and George Sunday the deceased and George Rabun went down into the field where the two Sunday boys were at work gathering their cane crop. Deceased and George Rabun were stout, able-bodied men, weighing 175 to 180 pounds each, while appellant and his brother, George, were small men, weighing from 120 to 130 pounds each. The state's witness George Rabun says that deceased went to the field fence and called George Sunday, telling him he wanted to see him; that Sunday replied, "If you want to see me you will have to come down here;" Rabun and deceased then went down into the field, and Phillips (deceased) remarked, "Well, I see you have got one-half of the cane through," and George Sunday replied, "I am through with my part of it, and we are not going to have anything to do with the rest of it;" that deceased then remarked, "I suppose you cursed old man Dunks yesterday and threatened to knock his brains out with a brush hook," George Sunday replying, "It is a damn lie; I didn't do any such thing;" that deceased then knocked George Sunday down, calling him a "whorehouse s____n of a b____h." Rabun says appellant interceded then, and asked deceased not to strike George any more, when he told appellant to "shut your mouth, you d____d son of a b____h;" that he nor deceased did not draw a knife, nor threaten to cut the throats of the two Sundays; that, while they were talking to appellant and had turned to call Mr. Dunks, George Sunday left and went to his house; that, believing he had gone for a gun, he and deceased left and went home.

Appellant says:

That his brother, George, and Mr. Dunks had had some words about the cane crop, but they had adjusted their differences; that deceased, Jack Phillips, and George Rabun came down in the field, and when they got down there "George Rabun taken me in the collar with his hand and Jack Phillips taken my brother, George, in the collar and drawed their knives on our throats, and Jack Phillips told my brother, asked him how come him to take his cane knife to old man Dunks. My brother told him — says, `Jack, I didn't take no cane knife to old man Dunks.' He says, `You are a God damned lie; you did do it, and Mr. Dunks says you did it.' He hit my brother up side the head with his fist, and he reached and got a stalk of sugar cane off the wagon and hit him across the back of his head, and told him — says, `I will cut your God damned throat,' and knocked his head back with his arm and started to cut his throat. I said, `Jack, please don't cut his throat.' He waved his knife at me; he says, `If you say ary other word I will cut your God damned throat, you mother-fucking son of a bitch from, ear to ear.' George Rabun says, `Yes; if you say ary other word, I will cut your God damned throat.' Jack says, `You are nothing but a set of God damned mother-fucking sons of bitches, the whole business of you, womenfolks and all, and mother.' I will tell you what he said about my mother; he told me my mother, sisters, and wife were not nothing but a set of mother-fucking sons of bitches. He says, `God damn a man who would take it; you got to take it; you can't help yourself.' He told me — says, `You can't stay in that house nary nother night;' says, `If you do we will kill every one of you.' He says, `You can't stay there nary nother night.' When he was talking to George, threatening what he would do to George, I asked him not to cut George's throat, and he told me if I said ary nother word he would cut my God damn throat, `you mother-fucking son of a bitch.' George Rabun told me if I opened my head ary other time, said ary other word, he would cut my throat from ear to ear. I guess George Rabun would weigh 180 or 190 pounds."

Appellant desired to prove what George Sunday told his wife when he got to the house, and what he appellant told George and his wife when he met them coming from the house. We do not think the court erred in excluding such statements. They were not res gestæ of the killing,...