Thompson v. State

• Decision Date: 17 November 1897
• Citation: 42 S.W. 974
• Parties: THOMPSON v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 974

THOMPSON v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1897.

Appeal from district court, Smith county; J. G. Russell, Judge.

Indictment of Emma Thompson for manslaughter. Defendant was convicted, and she appeals. Reversed.

Jas. M. Edwards, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of manslaughter, and her punishment assessed at two years in the penitentiary; hence this appeal.

The testimony shows, substantially, that the homicide occurred at night, while the parties were returning from a festival given at the house of one Frank Tave. It appears that about 12 o'clock, or a little after that time, the festival broke up; and appellant and Jesse Roberts, as her escort, left the house together. Coming on immediately behind them were Minnie Johnson and Alex Edwards, her escort. When they had proceeded about 150 yards from the house, in the direction of the home of appellant, the party was overtaken by Ben Grant (deceased) and Oliver Roberson. They passed Minnie Johnson and Alex Edwards; and, according to the state's testimony, Oliver Roberson immediately took hold of defendant, and told her that Jesse Roberts should not go home with her. Defendant told him to turn her loose, and he at once turned her loose, and then took hold of Jesse Roberts by the lapel of his coat. As soon as Roberson turned defendant loose, Ben Grant (deceased) took hold of the defendant by the hand or arm, and told her that Jesse Roberts should not go home with her, and that he and Roberson were going home with her. Defendant told Ben Grant to turn her loose, but he still held to her hand or arm. Defendant told him again to turn her loose, and then told him that, if he did not turn her loose, she would cut his heart out. Just then Jesse Roberts said, "Stick it to him;" and at once defendant (Emma Thompson) struck Ben Grant (deceased) with her right hand, and cut him with a knife which she had in her hand. The deceased at once staggered back and fell to the ground; and defendant walked on up the road, saying as she started off, "You need not be playing drunk, you damn son of a bitch." Oliver Roberson and some of the parties who had come up helped Grant up, and carried him back to Tave's house. The testimony for the state further tends to show that when defendant cut deceased he was doing nothing to her, except holding her by the hand or arm, and insisting that they go home with her, instead of Jesse Roberts. It was also shown that deceased expired shortly after reaching defendant's house, dying some 15 minutes after receiving the stab. The only expression he used after he fell in the road was, "She has cut me." At the time, deceased was standing in front of defendant, insisting on going home with her, and holding her by the hand or arm, and was holding an oak stick, about three feet long and about an inch thick, in his hand, one end resting on the ground. It was shown that Oliver Roberson had accompanied the defendant to the festival on that night, but nothing is stated as to how Jesse Roberts came to be her escort on her return home, instead of Oliver Roberson. It was shown by the state that appellant procured the knife with which she did the stabbing from one Erwin, suggesting that she desired it to cut a toothbrush. She was requested by Erwin to return it to him. The evidence shows, however, that she retained the knife on leaving the festival in company with Jesse Roberts, and had it open in her hand during the route, and up to the time of the difficulty. The knife was conceded to be a deadly weapon. After the difficulty, and on her way home, Erwin overtook her, and she then offered him the knife; but he told her that, if she had cut the deceased with it, the court would need it, and declined to take it. As to the wound inflicted, and its being the cause of death, the testimony was to the effect, in addition to what has been above stated, that the wound inflicted was in the left breast of the deceased, just below the left nipple. It was a half inch or three-fourths of an inch wide. The knife went through the lapel of the deceased's coat, shirt, and undershirt. There was blood on his breast, and there was considerable blood on his clothing. When defendant was called on for the knife with which she stabbed Grant, she gave the same to the officer; and there was blood on the blade, on the sharp point. The wound itself was not probed.

The testimony of the defendant, while agreeing in the main with that of the state, differed therefrom in some essential particulars. The defendant's witnesses show that, while appellant was insisting on deceased turning her loose, she told him that, if he did not turn her loose, she would report him to the justice of the peace, and that then her escort, Jesse Roberts, said, "Stick it to him." It was also shown that deceased struck defendant several blows with his fist, in the breast, before she cut him, and that he was pulling her up the road, telling her in the meantime that he was going home with her. She was resisting and pulling back. To summarize, we quote that part of her testimony in connection with the immediate act of stabbing, as follows: "I told him to turn me loose, and he turned me loose, and stepped over to Jesse Roberts, and took hold of him. The deceased then took hold of my left arm, above the elbow, with both of his hands, and told me that Jesse Roberts should not go home with me, but that he was going home with me. I told him to turn me loose, and I pulled back from him. He jerked me, and pulled me along up the road, and I told him that, if he did not turn me loose and let me alone, I was going to the justice of the peace the next morning, and report him. Just then Jesse Roberts said, `Yes; stick it to him;' and deceased said to me, `No you won't; you won't get away from here.' Deceased continued to jerk me and pull me up the road, and I continued to pull back from him, and told him to let me alone and turn me loose. While this was going on, I told deceased, if he did not turn me loose, I would cut him. He continued to hold me by the arm and pull me, and said that, if Jesse Roberts went home with me that night, he would go over his (deceased's) dead body. While deceased had hold of my arm with one of his hands, and was pulling me, he struck me several times in the breast with his fist of the other hand. I did not know what deceased was going to do to me, and I cut at him with the knife which I had gotten from Alex Erwin, and still had, open, in my right hand. I do not know whether I cut him or not. I swung my right hand round, and cut at the deceased, and I know that the knife went into his clothing, but I do not know whether it cut his flesh or not. I cut at him to make him turn me loose, and because he had said that I should not get away from there, and because I did not know what he and Oliver Roberson were going to do to me. When Ben Grant fell to the ground, I did not know that I had cut him. I thought he was playing drunk. I did not intend to kill Ben Grant, nor to cut him seriously. I would not have killed him just for wanting to go home with me. I had nothing against the deceased, and would not have cut him, had I not been compelled to. I did not cut him because he had hold of me." There was furthermore no proof of ill feeling between the parties anterior to the difficulty.

Appellant's first contention is that the corpus delicti is not sufficiently proved (that is, that it was not shown that the wound inflicted by appellant caused the death of deceased); and counsel cites us to the cases of Lucas v. State, 19 Tex. App. 79, and High v. State, 26 Tex. App. 545, 10 S. W. 238. In the Lucas Case, supra, the court holds directly that it was not sufficiently proved in that case that the wound inflicted caused the death of the deceased. In that case, as in this, the wound was made with a knife; and the testimony showed that it was in his breast, just below the left nipple. It was about three-fourths of an inch wide, and was probed by running a stick into it an inch and a half. Witnesses stated, however, that they did not know whether the wound extended to the hollow. The testimony in said case is somewhat meager as to the infliction of the wound by defendant. If it was inflicted by him, it was in the nighttime, and after he had carried the deceased to help him on his horse. The dead body of the deceased was found the next morning. There was testimony of the appearance of blood from the point where defendant was seen to go away from the deceased to where deceased's dead body was found the next morning, some distance below on the road towards deceased's home; and under deceased's body, beneath the wound, there appeared to be a little pool of blood. The defendant was heard to state, with reference to the wound, "I wonder if I hurt that old man last night when I cut him;" and also, to another witness, who told him the next morning after the body was found, "You must have hurt him, Si; you hit him too hard,"—defendant replied, "I think, too, I must have hurt him, for the blood was coming before I pulled the knife out." We have quoted from this case of Lucas, supra, because it is the stronger case of the two, and is more nearly analogous to the present case, as to the facts regarding the corpus delicti. With due deference to the court and learned judge who rendered that opinion, we are inclined to differ with the view taken by the court on this question. We believe that the evidence in that case sufficiently established that the death resulted from the stab with the knife. In the case at bar there is no...