Wallace v. State

• Decision Date: 23 January 1918
• Docket Number: (No. 4832.)
• Citation: 200 S.W. 407
• Parties: WALLACE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 407

200 S.W. 407

WALLACE v. STATE.

(No. 4832.)

Court of Criminal Appeals of Texas.

January 23, 1918.

Appeal from District Court, Bexar County; J. T. Sluder, Judge.

Wm. R. Wallace was convicted of manslaughter, and he appeals. Judgment reversed, and cause remanded.

W. E. Engel and Will A. Morriss, both of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appellant, under indictment for murder of John Massey, was convicted of manslaughter. His father, J. H. Wallace, and his brother, T. D. Wallace, were charged with the same offense under separate indictments. The father, J. H. Wallace, a man about 65 or 70 years of age, was indebted to the father of deceased who was a merchant. The account was some $7 or $8. J. H. Wallace and a witness by the name of McGinnis were on the street in front of a saloon owned by a witness by the name of Booth, and were engaged in a conversation about their own business affairs. Deceased approached J. H. Wallace while thus engaged in regard to the collection of the account mentioned, and a difficulty ensued between them, in which the deceased struck J. H. Wallace several times, bruising his face, and knocking him down. Soon after the fight began appellant and his brother, T. D. Wallace, who at the time were in the saloon with a friend drinking a glass of beer, rushed out on the street where the difficulty was taking place. About the same time other people who were in the saloon also came out.

The eyewitnesses who were introduced by the state described the occurrence, and from their testimony we gather that after the old man had been knocked down he got up and approached the deceased, who walked backward towards the other side of the street. The evidence is conflicting as to which of the sons got out of the saloon first, though it indicates that the brother of the appellant reached the deceased first, and on his taking hold of deceased was struck by him.

The saloon keeper, Booth, said that he saw one of the Wallaces strike the deceased in the stomach; that he could not say which one did it; that he thought it was one of the boys, and the blow was in the nature of a thrust with the right hand just below the navel; that he could not swear that appellant took any part in the difficulty; that he recollected that the old gentleman was out in the street, and both of the boys were out there—one went, then the other, but he was unable to say which went first. The several other witnesses for the state related the matter in substantially the same way as the witness Booth.

The deceased, after the difficulty, went to his father's store some two or three blocks away, and replying to an inquiry said: "I am stabbed; I was stabbed by the Wallaces." He said T. D. put the knife in him. (T. D is a brother of defendant.) The mother of deceased testified to a conversation, had with him after he reached home, in which deceased said: "Mamma, I have been cut. The Wallaces done it." I said, "Which one?" and he said, "T. D." McGinnis, an eyewitness for the defendant, was present at the beginning of the difficulty; saw deceased strike old man Wallace and break the skin on his nose and head. He recovered and went at Massey. "The next one out was T. D. Wallace. He grabbed hold of Massey and jerked him around, and Massey hit him on the head, and it staggered Wallace. They kept fighting, and the next I noticed was he knocked the old gentleman down in the street on his hands and knees. At that time I think everybody in the saloon was out, six or eight men. Massey struck first; he jerked his coat off and threw it on the sidewalk. Mr. J. H. Wallace was bleeding; the blood was running down his face and collar. I don't think the whole thing lasted over a minute or so. I don't think defendant ever got near enough to be hit or hit. I don't think he got nearer than six or eight feet. I think he had a bad foot. Massey was backing off across the street, T. D. Wallace and J. H. Wallace were going in the direction that he was backing, and William Wallace was going there too. The three Wallaces were about eight feet from him. I did not see a knife in anybody's hand; don't believe William Wallace ever got close enough to strike Mr. Massey; don't believe Mr. Massey ever struck him."

The defendant testified that he was lame, using a crutch; that when the fight began his brother ran out towards where his father and deceased were, and took hold of deceased; that he was retarded by the condition of his foot; that while out in the street he saw Massey strike his father and knock him to his knees, face forward; that he reached to help his father, but he got up before appellant got hold of him; that for the moment his attention was not directed to Massey, and when he looked up the latter was going up the street, and he took hold of his father's arm and said, "What is all this trouble?" Noticing at the time that his father had a knife in his hand, appellant said, "What on earth are you doing with that knife?" to which his father replied, "He will tell you." The brother walked up about that time, and they went into the saloon and washed the blood from the face of the father and brother. Appellant claimed that he never struck Massey, and did not get into the fight, and was never closer than fifteen feet to deceased; that the nearest he came to him was when he endeavored to pick up his father in the middle of the street, and Massey went off.

The court submitted the issues of murder, self-defense, defense of another, and the law of principals.

Assuming that there is sufficient evidence to show that appellant engaged in the difficulty, or to raise the issue justifying that conclusion, we do not think it authorized submission of the law of principals. From the case of Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102, the law of principals is succinctly stated as follows:

"Where there is no conspiracy to commit an offense, yet it is committed by one, and another is present, and knows the intention of the others, and by words or acts aids the persons engaged, he is guilty with them to the extent of his knowledge, or for the reasonable consequence of the acts aided."

The evidence does not suggest the...