Varnell v. State

• Decision Date: 29 June 1888
• Citation: 9 S.W. 65
• Parties: VARNELL <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 65

9 S.W. 65

VARNELL

v. STATE.

Court of Appeals of Texas.

June 29, 1888.

Appeal from district court, Hill county; J. M. HALL, Judge.

Indictment against F. P. Varnell for the murder of Jonas Land. Defendant appeals from a judgment of conviction of murder in the second degree. Defendant requested an instruction (No. 3) to the effect that "even if defendant had intercourse with Ella Land, and Ella had separated from him and left the place, and then deceased with an axe made such an assault upon defendant as caused him reasonably to apprehend death or serious bodily injury, he would have been justifiable in killing deceased," which was refused.

Anderson, Flint & Anderson, Pearre & Boynton, S. C. Upshaw, and Thomas Joy, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This conviction was for murder of the second degree, with the penalty fixed at nine years in the penitentiary.

The testimony of Mrs. Beasley, nee Land, is in substance as follows: "I am the daughter of Jonas Land, deceased, who was killed at his home in Hill county, Tex., by Tom P. Varnell. On the night of March 5, 1883, there was a gathering at my father's house. Varnell was present. George Walker came with him. There was dancing in a vacant house in the yard. Between 11 and 12 o'clock I missed my sister Ella. Hunting for her on the outside of the house, I found my sister and Varnell lying on the ground. I said: `What are you doing here?' Ella said: `Make him quit, for I can't.' I then pulled Varnell up, and my sister Ella ran to the house. Varnell caught me by the sleeve, and told me I had to help him hunt for his pistol. I told him to let me go; that father was coming, and that if he caught me out there he would kill me. He said, if he did, he would kill him. Very soon afterwards my father came up with a lantern in his hand, but nothing else. He (the father) asked what did all that mean. Defendant said: `Stand back; I am a desperate man.' Varnell shot twice. He shot with a pistol. He got it from George Walker. Walker handed him the pistol." The sister Ella to whom reference is made did not testify in the case. It was shown that she is now deaf, and is in the asylum at Austin. There is testimony in the record tending to contradict some parts of this recital, and clearly presenting the issue of self-defense; but for the purpose of disposing of the points raised on the charge of the court it may be taken as the facts attending the homicide.

Having submitted to the jury the general rules of law relating to manslaughter, murder of the first and second degree, and of self-defense, the court charged as follows: "When one person kills another in defense of his life, or to protect his person from serious bodily injury, then in law such killing would be justifiable, provided the person who did the killing did not by his own unlawful act provoke the difficulty, and bring about the excuse of taking the life of his assailant; in which case he would not in law be justifiable." Again: "If the defendant by his unlawful acts brought about the difficulty that led to the death of Jonas H. Land, then he would not be justified in killing said Land, because he, defendant, was in danger of losing his life or of suffering serious bodily harm at the hands of the said Land; but if the said difficulty was provoked by the defendant for the purpose of taking the life of said Land, and if the defendant killed him with express malice, it would be murder of the first degree; but if the killing was with implied malice, it would be murder of the second degree. * * *" If the accused provokes the combat — produces the occasion — in order...