Washington v. State

• Decision Date: 13 May 1908
• Citation: 110 S.W. 751
• Parties: WASHINGTON v. STATE.
• Court: Texas Court of Criminal Appeals

110 S.W. 751

WASHINGTON v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1908.

Appeal from Criminal District Court, Harris County; J. K. P. Gillaspie, Judge.

Sam Washington was indicted for murder, and from a conviction at the trial, he appeals. Reversed and remanded.

F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

On the 19th day of January of this year the body of Mittie Washington was found in Buffalo Bayou in the city of Houston in an advanced state of decomposition, clad only in an undershirt. A short time after this appellant was indicted for the murder of the said Mittie Washington, who was his wife. The parties had for some years been married, and until a short time before the death of the wife had lived in Colorado county. From the evidence they seemed not to have gotten along very well, and there was some proof that the deceased had carried on illicit relations with other men, particularly with one Buck Wicks, and that appellant had moved with his family to Houston with a view of escaping and avoiding the attentions of Wicks. It is his claim and contention that, soon after their removal to Houston, one Chat Allen became too attentive to his wife. On the trial the state offered in evidence a written confession made by appellant under the statute, in which he stated in substance that he had killed his wife about the 6th of January, 1908; that he struck her with a round stick of stovewood twice on the left side of the head; that soon after she died he and one Wells Gafford carried her body to the bayou and put it in the bayou. On the trial he became a witness in his own behalf, and testified, among other things, that he had had frequent disturbances with his wife, growing out of her improper conduct in respect to other men; that on the day of her death he saw Chat Allen go out of his back gate, and he had talked about this incident with his wife; that on the night that he killed her they had had a considerable discussion of their former differences; that she returned about dark, and they talked until between 9 and 10 o'clock, and finally his wife said, "Well, we might just as well settle this thing right now; I am going to kill you to-night, or you will kill me"—and at that time she got the razor, and came after him with the razor in her hand; that he ran around on the other side of the stove, and she came around upon that side; that he was on first one side and then the other of the stove, and while in this position he reached around and got a stick of stovewood, and at this moment she was right close up to him, right along by his side, and he hit her twice on the head, the second lick knocking her down. The testimony contains three references to this stick of stovewood, with which it is claimed the blow was inflicted. In one place in the statement of facts it is referred to as "a stick of stovewood"; at another time it is stated, "It was a small piece of dry stovewood, about as large around as my wrist, about two feet long." In the written confession offered in evidence the stick is referred to as a round stick of stovewood. The statement, further, is that about the time, or soon after, he killed his wife, the witness Gafford came along, and that the two carried the body of his wife to the bayou, into which it was thrown.

In his charge to the jury the court under appropriate instructions submitted murder in the first degree, murder in the second degree, manslaughter, self-defense, and the issue of aggravated assault. In general, the charge of the court is correct, and is in many respects an exceptionally clear charge. We think, under the facts of the case, there is one error for which the case must be reversed. After submitting the issues of murder in the first degree, murder in the second degree, manslaughter and self-defense, the court instructed the jury as follows: "Every person is presumed to intend the natural and probable consequences of his own acts, and if you believe the defendant intended to kill the deceased, and used means reasonably calculated to effect that end, then, if you find his act was not justifiable, it was one or the other of the offenses concerning which you have been heretofore instructed, according to the state of mind in which the killing was done; but if you have a reasonable doubt whether the defendant meant to kill his wife, or have a reasonable doubt whether he used means which were naturally and ordinarily calculated to kill her, but believe that his act in striking her was not justifiable, and that he struck her with a weapon which was calculated to inflict upon her great bodily injury, you will find him guilty of the offense of aggravated assault and battery, and assess his punishment at a fine of not less than $25 nor more than $1,000, or by imprisonment in the county jail for not less than one month nor more than two years, or by both such fine and imprisonment." We believe that this charge is erroneous, in that the court failed to give in connection therewith the substance of article 717 of the Penal Code of this state. That article is as follows: "The instrument or means by which a homicide is committed are to be taken into consideration in...