Watt v. State

• Decision Date: 21 December 1921
• Docket Number: (No. 6551.)
• Citation: 235 S.W. 888
• Parties: WATT v. STATE.
• Court: Texas Court of Criminal Appeals

235 S.W. 888

WATT v. STATE.

(No. 6551.)

Court of Criminal Appeals of Texas.

December 21, 1921.

Appeal from District Court, Gregg County; Chas. L. Brachfield, Judge.

Melvin Watt was convicted of manslaughter, and he appeals. Reversed and remanded.

Riley Strickland and E. M. Bramlette, both of Longview, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The indictment was for murder; conviction for manslaughter. The deceased, Prentice Floyd, and the appellant married sisters. According to the testimony of appellant's wife, the deceased, a short time before the homicide, insulted and assaulted her. On the occasion of the homicide, the deceased was standing near the street on the railroad dump, and when the appellant, in company with his wife and several other women, going in the direction of appellant's home, reached the point in the road opposite the deceased, the homicide took place.

The evidence touching the incidents of the encounter is conflicting. Three shots were fired by the appellant, taking effect upon the deceased and apparently striking him in his hands and in his breast or side.

The appellant testified that the meeting of the deceased was unexpected; that he saw him near the road with a knife in his hand, whittling, and spoke to him, telling him that he heard that he had gone to his house and torn the clothes off of appellant's wife; that the deceased at first denied this, but immediately after admitted that he had done so, and with an oath said, "You can't help it," starting at the same time toward the appellant with an open knife in his hand, declaring that he would cut his throat, and that the shots were fired as he advanced.

Appellant's wife, who was present, gave substantially the same testimony. Appellant had been informed by another witness that the deceased had threatened to take his life, and evidence was introduced to the effect that the deceased bore the reputation of a violent and dangerous man.

Several eyewitnesses for the state described the encounter, all of them declaring that before the shots were fired, some words were spoken by the appellant to the deceased, though none of them were able to repeat the language. These witnesses were in practical agreement that before the shots were fired the deceased changed his position and came toward the point where the appellant stood. Some of them declared that the deceased had a knife in his hand, but are not in harmony as to whether it was open or not, and claimed that no demonstration was made by the deceased to use it prior to the shooting.

The deceased and his wife had separated. She was used as a witness by the state. Appellant, on cross-examination, asked her the following question:

"When you spoke to your husband about what your sister had told you, what did he say to you?"

Her reply was excluded upon objection by the state that the question was framed so as to elicit hearsay and irrelevant and immaterial testimony. She would have testified that the deceased became angry and said:

"I am tired of fooling with you damned negroes, and I am going to kill you. I am going to shoot up your house to-night and Melvin's too."

In qualifying the bill, the trial judge said that he did not understand that she would have testified to threats, and that the effort was to have her detail the statement of the deceased with reference to the assault upon her sister. The question was not as pointed as it might have been in directing the mind of the court and the witness to the information desired, but appellant's counsel, as shown by the bill, at the time attempted to state to the court what testimony he expected to elicit and to explain its relevancy; that upon the refusal of the court to hear his statement he requested that the jury be retired, in order that he might develop in the presence of the court, in the absence of the jury, the facts which he expected to elicit so that the court might intelligently pass upon the admissibility of the proffered testimony, and so that the appellant, if it was excluded, might have the benefit of the examination in preparing his bill of exceptions. This was declined by the court, but he said that he would allow a complete bill of exceptions, and this was done, and therein is embodied the uncommunicated threat which we have quoted above. Under the circumstances, we think the question as to the admissibility of the testimony excluded is properly before this court.

On the subject of uncommunicated threats, we quote from Wharton's Crim. Evidence (10th Ed.) vol. 2, § 757, this:

"* * * If the question is as to which party is the assailant, then it is admissible to prove by the prior declarations of either that the attack was one he intended to make. Threats to this effect by the defendant are always, as has been seen, admissible; and it is properly held that there is equal reason, supposing a collision between the deceased and the defendant to...