Vinson v. State

• Decision Date: 17 March 1909
• Citation: 117 S.W. 846
• Parties: VINSON v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W. 846

VINSON v. STATE.

Court of Criminal Appeals of Texas.

March 17, 1909.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Reece Vinson was convicted of manslaughter, and appeals. Reversed and remanded.

W. J. Townsend, Jr., for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of manslaughter, and his punishment assessed at four years' confinement in the penitentiary.

The evidence shows that appellant killed Lee Bise by cutting him with a knife. The evidence is quite conflicting. The state's testimony, in substance, shows that deceased was working for the Lufkin Foundry & Machinery Company. One of the main witnesses, Floyd Pullen, testified, in substance, as follows (and his testimony presents the state's theory of this case, and we here state it): "I know the defendant. Deceased and defendant were at a show on the night of the difficulty. I saw the difficulty that took place between them. It occurred on the outside of the tent. Deceased and I walked up to the tent, and appellant walked up to Lee Bise, the deceased, and deceased caught him around the shoulder and says, `Reece, are you going to the show?' and deceased says, "Go on, God damn you, and don't f____k with me;' and deceased says, `You need not get on your head about it.' Reece says, `I will get on my head as much as I damn please;' and deceased says, `You will, I will be damned.' And Joe Miller stepped in between them and pushed deceased back, and says, `Don't you boys be fussing; you will be fighting in a minute,' and he told deceased to come on and let's go in the show, and Joe Miller, deceased, and myself started in the show; and deceased says, `I am not scared of you;' and Reece says, `Nobody wants you to be afraid of me,' and called deceased a son of a bitch; and deceased says, `I will not take that;' and he turned back, and Reece was coming toward deceased, and deceased told him, `I will not take that off of you;' and they started to fighting, and the crowd come in between me and deceased and I couldn't see them, and when I got to deceased he was falling, and appellant came right out by me. I was in four feet of them when they commenced striking at each other. I don't know that either one started at each other first; they were both going towards each other. When appellant called him a son of a bitch he was coming towards deceased, going towards the show. I could not tell which one struck at the other one first. I did not see anything in the hand of deceased. He did not have anything in his hands; he didn't have a stick or beer bottle or knife. I couldn't see anything that appellant had in his hands. When I got to deceased he was falling—he had been cut; he was falling towards the ground, and I went to him."

This presents the state's case, with this addition: The sheriff testified: "Some time during the night of the difficulty or early the next morning, I couldn't say which, appellant gave me a knife. I had the knife in my office laying there on the desk, and I went to look for it yesterday and couldn't find it, and I don't know where the knife is. It was what I would call a physician's knife—a long knife. The blade of the knife was between 2½ and 3 inches long. The knife looked like what I would call a physician's knife."

Appellant testified that he was listening to the band play at the show tent, when "deceased walked up behind me and caught me around the waist and lifted me up and dropped me on the ground; and I asked him what did he mean by that, and he says, `I don't reckon it is any of your damn business,' and I says, `I don't want you to do it any more,' and in the meantime while we were talking the band went back to the little tent, and I turned and walked over to the other tent, and in a few minutes he walked up and commenced cursing at me again and called me a son of a bitch. Deceased said, `God damn you, you son of a bitch,' and hit me a glancing lick, and he kept hitting at me, and I was backing off and we got in the guide rope. He was hitting me when I was backing, hitting me in the face and on the head, and when we got to the guide rope I went under the rope, and when he got to the rope I caught hold of it and stopped. When so pressed I cut him. I was just cutting to keep him off of me. I just cut him one time. Before the night of the trouble I did not know deceased personally. Knew him when I saw him. Never had had any ill will or difficulty with the deceased before, and don't know that I ever spoke to him. Only struck deceased with my knife one lick. When I struck him I did not intend to kill him. The knife I had was just a medium-size knife; the blade was not longer than 1½ or 2 inches long."

Appellant in his brief insists the court erred in the following charge: "The killing of another person is in self-defense and justifiable when committed in the protection of the person of the party killing against any unlawful and violent attack then being made by the party killed; but if the attack being defended against is not being made with a deadly or dangerous weapon, or is not such as threatens death or serious bodily injury to the person thus attacked, then the person so attacked, before he can claim perfect self-defense for killing, must have resorted to all other means reasonably proper and effective for the purpose, except retreat, to protect himself from the injury before killing, and if he does not do so, and it is shown that there were other means (other than retreat) which would have been reasonably proper and effective to...