Twyman v. State

• Decision Date: 30 January 1924
• Docket Number: (No. 7105.)
• Parties: TWYMAN v. STATE.
• Court: Texas Court of Criminal Appeals

258 S.W. 480

TWYMAN v. STATE.

(No. 7105.)

Court of Criminal Appeals of Texas.

January 30, 1924.

Appeal from District Court, Coryell County; J. R. McClellan, Judge.

H. G. Twyman was convicted of murder, and he appeals. Reversed and remanded.

McLean, Scott & McLean and W. H. Slay, all of Fort Worth, and Stinnett & Stinnett and Clay McClellan, all of Gatesville, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for murder; punishment being assessed at 10 years in the penitentiary.

On the 25th day of September, 1921, appellant was employed as the commandant or drill master at the State Juvenile Training School, located at Gatesville, in Coryell county. On that date and at that place Dell Thames met his death while an inmate of the institution. Appellant was indicted, charged with murder, alleged to have been committed by choking the said Thames with his (appellant's) hands. The state's case rests principally upon the testimony of Eddie Stokes and Joe Thomas, who were also inmates of the training school, and who had been selected from among the other boys as subofficers for drill purposes. Their testimony in substance is that appellant had abused deceased on Friday and Saturday prior to his death on Sunday, and had given him a whipping earlier Sunday morning when they had reported that the boy would fall down and refuse to drill. According to their evidence, immediately preceding the homicide appellant was returning to the drill ground, when they walked to meet him, escorting deceased, and reported that he had again refused to drill; that he motioned to them to take deceased behind the "picket," a small covered stand about 8 by 10 feet with open sides, used as a seat for guards, and which was the usual place for inflicting punishment; that appellant took deceased and deliberately choked him, using such expressions as "Do you feel yourself slipping?" "I liked to have got you that time," choking deceased down; that he then picked up his body and choked out of him any remaining spark of life. These two boys were supported in their testimony by two other boys; their testimony varying in some respects.

Against this proof appellant offered the testimony of about 8 of the inmates to the effect that Stokes and Thomas choked the deceased to death or killed him by other mistreatment, and boasted of appellant's implication in the offense as one "they had put over on the captain." It was also shown that two employés of the institution were standing on one side of the "picket" within 8 or 10 feet of appellant and deceased, and that they heard none of the remarks attributed to appellant by Stokes and Thomas. On the other hand, they testified that the first expression they heard appellant make was the inquiry asking deceased what was the matter; that appellant then called them to come around, and said something was wrong with the boy; that they both went around and found the boy dead. One of the employés, Johnson, testified that when he turned he saw appellant with his hand about the throat of deceased. Appellant explained this by stating that he was supporting the boy's head. The appearance of deceased after death was established by many witnesses. From his appearance two physicians testified that in their opinion he met his death by strangulation, while other physicians testified that he could not have died as the result of choking or strangulation. We think the foregoing a sufficient statement of the case.

Before discussing what we consider the main points upon which a decision of this case must rest, we will dispose of other questions presented. The court charged upon manslaughter, instructing the jury that "adequate cause" was one of the essential elements thereof. It is insisted that "adequate cause" is not an element of manslaughter where articles 1147 to 1150, inclusive, of our Penal Code become applicable; in other words, that where a homicide occurs by the use of means not in their nature calculated to produce death, by reason of which the intention to kill becomes a matter of proof and does not rest upon presumption, that the issue of manslaughter arises, regardless of the existence of "adequate cause," as defined in the general statute upon manslaughter, being articles 1128 to 1137, c. 15, Penal Code. Our attention has been called to Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48; Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106; Lee v. State, 44 Tex. Cr. R. 460, 72 S. W. 195; Betts v. State, 60 Tex. Cr. R. 631, 123 S. W. 251; Boyd v. State (dissenting opinion) 78 Tex. Cr. R. 28, 180 S. W. 230, as supporting the proposition contended for by appellant, and to Boyd v. State, supra (majority opinion), and Merka v. State, 82 Tex. Cr. R. 550, 199 S. W. 1123, as asserting the contrary rule. This court, speaking through Judge Morrow, in the opinion on rehearing in Merka v. State (supra) reviewed or referred to the cases cited and said:

"We believe that in so far as these decisions that lay down the proposition that the statutes quoted above require the submission of manslaughter without proof of adequate cause where the instrument used is not per se a deadly weapon, that they misconceive the purpose and effect of the statute. This is the view of Mr. Branch as stated in his Ann. P. C. p. 1183. This is in accord with the opinion of this court written by Judge Hurt in the Hill Case, 11 Tex. App. 470."

The exact question was again before this court in Pinson v. State, 94 Tex. Cr. R. 517, 251 S. W. 1092, and was discussed in the opinion on rehearing. The cases of Johnson (supra) and Taylor (supra) and Fitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584, were there relied upon to support the same proposition now urged, but the rule announced in Merka v. State (supra) was followed. After referring to articles 1147 to 1150 of the Penal Code, the conclusion of the court was announced by Judge Lattimore in the following language:

"It is not our understanding that by any of said articles it was intended to change the statutory definitions of manslaughter, or to make any intentional killing manslaughter, in the absence of sudden passion based on an adequate cause."

It is the opinion of the writer that the construction given the statute in Merka (supra) and Pinson (supra) is correct. The contention of appellant to the contrary cannot be sustained under the view entertained by this court.

Appellant makes complaint at the action of the court in returning the jury for further deliberation, after ascertaining that they had agreed upon the question of guilt. but were divided 7 to 5 upon the question of punishment. The jury were seeking to be discharged, asserting they could not reach an agreement. We do not think the bill relating what occurred brings the case within the principle announced in Hughes v. State, 81 Tex. Cr. R. 526, 197 S. W. 215, and Golden v. State, 89 Tex. Cr. R. 525, 232 S. W. 813, which are cited in support of the contention that error was committed.

The essential question on this appeal is the intent of appellant arising from the fact that the means used in killing deceased were the bare hands, and whether this matter of intent was properly presented in the court's instructions to the jury. To discuss this question intelligently it will be necessary to copy into this opinion certain paragraphs of the court's charge.

Paragraph 11 is a copy of article 1147, P. C., and reads:

"The instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless, from the manner in which it was used, such intention evidently appears."

Paragraph 12 is a copy of article 1149, P. C., and reads:

"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, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery."

Paragraph 13:

"A deadly weapon, within the meaning of the preceding paragraphs of this charge, is one which from the manner of its use is likely to produce death or serious bodily harm."

Paragraph 15:

"Now, bearing in mind the foregoing instructions, if you believe from the evidence in this case beyond a reasonable doubt that the defendant, H. G. Twyman, in the county of Coryell and state of Texas, and on or about the 25th day of September, 1921, did then and there unlawfully kill Dell Thames by then and there choking the said Dell Thames with his, the said H. G. Twyman's hands, as alleged in the indictment, and you further believe from the evidence beyond a reasonable doubt that in such killing, if any, the said defendant, H. G. Twyman, was actuated by, and acted upon his malice aforethought, as that term is defined to you in paragraph 4 of this charge, you will find the defendant guilty of murder and assess his punishment at death, or by confinement in the penitentiary for any term of years, provided it be for not less than 5 years, as you may determine and state in your verdict."

Paragraph 18:

"If in this case you believe from the evidence that the killing occurred under the influence of sudden passion, but you further believe that the same was done by the use of...