Thompson v. State

• Decision Date: 26 November 1887
• Parties: THOMPSON v. STATE.
• Court: Texas Court of Appeals

6 S.W. 296

THOMPSON v. STATE.

Court of Appeals of Texas.

November 26, 1887.

Appeal from district court, Harris county; JAMES MASTERSON, Judge.

The following statutory provisions are involved in this decision: Code Crim. Proc. Tex. art. 677: "After the argument of any criminal cause has been concluded, the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case. * * * This charge shall be given in all cases of felony, whether asked or not;" Pen. Code. art. 614: "Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill;" Id. art. 54: "Every offense which is punishable * * * by imprisonment in the penitentiary * * * is a felony." Id. art. 604: "It [manslaughter] shall be punished by imprisonment in the penitentiary. * * *"

Under an indictment for the murder of John B. Pickren, the appellant, Thompson, was convicted of manslaughter, and was awarded a term of two years in the penitentiary. Stated briefly, the proof for the state showed that, between 8 and 9 o'clock on the fatal night, the defendant was sitting on a box in front of a store in the city of Houston, watching a number of boys playing at the game "I spy." Deceased approached him, and said something which none of the witnesses heard. Defendant replied: "Go away and leave me alone. I want nothing to do with you. You called my mother a liar, and me a son of a b____h." The deceased denied the charge, and walked off, but returned and said: "I want you to prove it. Who can you prove it by?" Defendant replied that he could prove it by his mother's cook. Deceased said that he would slap defendant if he did not hush up. Defendant got off the box and said, according to some of the witnesses, "Then slap me;" according to others, "Then slap me, God d____n you. The man who calls me a son of a b____h, and my mother a liar, has got me to whip;" and according to one of the witnesses he closed his remarks by saying his (deceased's) life was "getting shorter anyhow." Thereupon deceased slapped defendant violently, and they clinched, being then against the wall. Presently defendant called to the boys not to let deceased hurt him. Somebody interfered to separate the parties; and deceased, starting off, said, "You hit me with brass knucks," and fell, and soon expired. When he fell defendant bent over him and called, in evident distress: "John! John! Oh John!" Some one then stepped up and asked defendant: "M. F., did you cut him?" Defendant replied: "Yes, and I'd cut him again." Deceased was stabbed in the left breast above the heart. None of the witnesses saw the blow given, nor did they see a knife or brass knucks in the hands of defendant. Defendant's mother soon arrived, and said to defendant: "I told you to stay at home," and "I told you to leave that knife at home." The witnesses for the defense gave the same general account of the fight, asserting positively that deceased was the aggressor in the fight, striking defendant twice in the face before the parties clinched. They heard nothing said about brass knucks, nor did they hear Mrs. Thompson say, when she arrived on the scene, "I told you to leave that knife at home." She said to defendant: "I told you to stay at home, and not go to the Fifth ward, where there is always a fight." Defendant retreated from the box to the wall, pursued by deceased, before the clinching. Mrs. Thompson declared that she knew nothing about her son having a knife, and said nothing to him about a knife just after the stabbing. Defendant told her that he "had to do it;" that deceased struck him twice, and "cursed you [witness] and cursed me." Deceased was a man, heavier, taller, and stouter than defendant,...