Walker v. State

• Decision Date: 28 April 1920
• Docket Number: (No. 5635.)
• Citation: 229 S.W. 527
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 527

229 S.W. 527

WALKER v. STATE.

(No. 5635.)

Court of Criminal Appeals of Texas.

April 28, 1920.

Rehearing Denied June 25, 1920.

On Motion to have Considered Second Motion for Rehearing, March 30, 1921.

Appeal from District Court, Harris County; C. W. Robinson, Judge.

H. L. Walker was convicted of murder, and he appeals. Affirmed.

J. Dixie Smith, Jno. C. Williams, and E. A. Berry, all of Houston, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the criminal district court of Harris county for murder, and his punishment fixed at death.

It appears from the record that appellant and deceased, whose name was Ottersky, on the 26th day of April, 1919, went in a car to a place in the woods not far from Houston, and that the body of deceased was found at this place some three days later, with four bullet holes, several of which were in vital places; said body being buried in a shallow grave, and evidence appeared of the fact that said body was dragged to said place from a point some yards distant. At a time, variously estimated at from 1:30 to 2 o'clock on said afternoon, appellant and Ottersky were seen together in said car, the latter being much under the influence of liquor, and exhibiting large sums of money and checks. A witness who was at work not far from the scene of the homicide said that at about 2:30 or 3 o'clock that day he heard four shots. When the body of deceased was found his pockets were wrongside out; his money, checks, and other valuables were gone. Four checks, payable to deceased, were indorsed by appellant, and deposited to his credit on the day of the homicide. The next day after the killing, appellant wrote a letter to the employer of the deceased, in which he spoke of the fact that he feared Ottersky had not enjoyed his visit to Houston, and that Ottersky told him that he had quit the business he was then employed in, and was Mexico bound. Appellant was also seen that same afternoon, driving alone the car in which he and deceased were earlier in the afternoon, and it was testified to by some witnesses that appellant bragged to them of the amount of money he had made that day or week. Altogether, the state placed on the stand a large number of witnesses, who showed the connection between appellant and deceased just prior to the hour of the homicide, and the possession by appellant of the effects of deceased immediately thereafter. When the state rested its case, appellant took the stand, and admitted that he shot the deceased several times, but claimed that he did it in self-defense. His account of what took place after he and deceased reached the place in the woods where the killing occurred was, substantially, that they ate a lunch first; then indulged in some drinking and poker playing, until he won all of the money which deceased had; and that when this was done they were sitting in various positions in the car, and that he said to deceased: "We think we are having a hell of a time, don't we? I wonder where the wife and babies are this evening." That deceased replied: "I don't give a damn where mine is. I reckon you know I am divorced." Appellant said he replied: "All the interest I have got is my wife and babies, and if I close this big deal Monday, I am going to wire my wife at Brownsville—wire my wife to meet me at Woodboro—that is where my babies are in school, and their school was out on Friday, and I am going to bring them to Houston, and make Houston my home from now on. I believe I could do good here. To this appellant says deceased replied: "Why in hell don't you get a divorce from that woman? She don't care anything for you; you know the way everything is." Appellant says he then replied, "What in the world do you mean?" and that deceased said, "By God, you know how you are living, don't you?" and he stated to deceased, "My family affairs haven't got anything to do with you;" and that deceased replied, "I guess, by God, it has;" and that deceased then kicked him out of the car, and started after him, and that as deceased was getting out of the car with a gun in his hand he fell, and appellant struck him, and in the ensuing struggle appellant was severely bruised, but said he succeeded in taking the gun away from the deceased, and shot him with it several times. Predicated upon this testimony, appellant asked a charge on manslaughter, as based upon insulting words towards a female relative.

Turning to the record, we find that the court charged on self-defense, and on manslaughter, predicated on an assault and battery, and instructed the jury that, in determining the condition of the appellant's mind, they could take into consideration all the circumstances of the case, occurring both at the time and prior thereto. No exception was taken to the charge of the court on self-defense, and the only serious complaint thereof made here seems to be that the charge did not submit manslaughter as based on insulting words. A special charge on that phase was presented and refused. We think the charge of the court an admirable presentation of the law applicable, unless the failure to charge on manslaughter, arising from the language attributed to deceased, is error.

In every case it is necessary that a demand for the submission of an issue be based on facts in evidence whose legitimate effect would be to raise such issue. Manslaughter is defined by statute to be an unjustifiable homicide, committed under the immediate influence of sudden passion arising from an adequate cause. Appellant did not claim that the language he imputed to deceased angered, enraged, or excited him at all; nor do we see anything in said language susceptible of any construction capable of having that effect. We have fully quoted from the testimony of the appellant what he said with regard to the occurrence, in order to make this clear. No sudden passion arising from the use of this language caused appellant to hurl himself at the throat of deceased; nor does he appear to have been the aggressor in the fight which he says later took place. On the contrary, he says that he asked deceased what he meant by asking why he did not get a divorce from that woman, and the reply of deceased was, "You know how you are living." Nothing in this seems to have raised any sudden passion on the part of appellant, for he says that he then stated to deceased that his family affairs had nothing to do with deceased, and that Ottersky said they did, and attacked him, kicking him out of the car, drawing a pistol, and continuing the assault upon him. We are unable to come to any conclusion but that the trial court properly refused to base any charge on manslaughter upon the ground of insulting words or conduct.

Our law of manslaughter is a legislative concession to the weakness of human nature, in that it recognizes that there are causes which may produce great passion in the heart of a man, and remove from him temporarily the power to reason and calculate the consequences. This sudden emotion does not calculate the relative sizes of men, nor the effectiveness of this or that weapon, or whether now is an advantageous opportunity; but, when the occasion offers, the passion masters the man, sweeps him into action, and renders impossible the existence of that mental condition necessary in order to produce malice and deliberation. Apparently to the mind of appellant, and certainly to ours, there was no insult to female relatives in the statement attributed to deceased, and none which roused such sudden passion in his mind, and no manslaughter was predicable thereon.

In his motion for a new trial appellant for the first time complained of statements in the argument of state's counsel relative to the failure of appellant to testify on his examining trial. This motion was controverted by the state, as is permissible under our statute, and upon its presentation the trial court heard evidence pro and con, and in his order overruling the motion expressly makes his finding of fact to the effect that no such statements were made by the attorney for the state in his argument. There seems ample evidence before the court to justify such conclusion, and it is the invariable rule of this court, and we think a proper one, that in such cases we will not attempt to say what would have been our conclusion, if placed in the position occupied by the trial court, but we will uphold such action, unless there appears a clear abuse of the discretion necessarily confided in the trial court in such matters.

We cannot agree to the contention that under this evidence a case of murder is not clearly made out.

We have examined this record at length, and carefully, in view of the punishment meeted out to appellant, but, finding no error therein, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Almost the only insistence of appellant in his motion for rehearing is, that it was reversible error for the trial court not to tell the jury in his charge, in so many words, that the language which he attributed to deceased prior to the killing was adequate cause to produce sudden passion, upon which manslaughter is predicated, and that this court correspondingly erred in its opinion upholding the action of the lower court. We endeavored to carefully weigh and discuss this matter in our former opinion, in which the language claimed to have been used is fully set out.

This court has held in many cases that the language used in the particular case then before it, was not insulting so as to make it measure up to our manslaughter statute. Graham v. State, 33 S. W. 537; Fitzpatrick v. State, 37 Tex. Cr. R. 20, 38 S. W. 806; Simmons v. State, 23 Tex. Cr. App. 653, 5 S. W. 208; Woods v. State, 71 Tex. Cr. R. 398, 159 S. W. 1183; Parker v. State, 24 Tex. App. 61, 5 S. W. 653; Trevino v. State, 72 Tex. Cr. R. 91, 161 S. W. 108.

These cases seem to hold that to call a man a son of a bitch or...