Welborn v. State

• Decision Date: 03 November 1915
• Docket Number: (No. 3739.)
• Citation: 179 S.W. 1179
• Parties: WELBORN v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W. 1179

WELBORN v. STATE.

(No. 3739.)

Court of Criminal Appeals of Texas.

November 3, 1915.

Appeal from District Court, Houston County; John S. Prince, Judge.

Dick Welborn was convicted of manslaughter, and he appeals. Reversed, and cause remanded.

C. McClain, John I. Moore, of Crockett, and N. B. Morris, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was allotted four years in the penitentiary for manslaughter.

In a general way, without being prolix, the evidence shows that some 15 years or such matter before this unfortunate difficulty appellant was charged with killing the father of the deceased. For this he was acquitted, and on this trial he testified he did not kill the father of the deceased, Marshall English; that he did not even have a fight with him. The theory of the state was that, appellant having been indicted for the killing of the father of Marshall English, and because perhaps he may have been guilty of that offense, he therefore wanted to kill, and did kill, Marshall English. A Mr. Pluncket was teaching a singing school in the community where the Englishes resided, and also in the community where the defendant resided. These places were something like seven miles apart. Just before the killing Pluncket was in defendant's community, and invited the people there generally, including the defendant and his family, to attend the singing school in the English community on a particular day, which invitation defendant and his family accepted, and attended that meeting. It seems to have been the closing exercises of that singing school. There were several members of the English family present at the time of the homicide, but were not members of either singing school, nor had they attended either. When appellant was on his way to the singing school, where the difficulty occurred, there is evidence tending to show that one of the English boys saw appellant and his family. The singing school went on without any trouble until some time after the dinner or noon hour. Everything was pleasant and quiet until about 4 o'clock or a little thereafter. The singing school adjourned. Marshall English and his friends and kinsfolk were in and about the schoolhouse, mainly dressed in their working clothes. It is shown they were about the doors and windows, and the theory of the defendant was they were locating appellant, of all of which he seems to have been ignorant. After the benediction was pronounced, and while appellant was near the rostrum, Marshall English and one of his companions entered the side door, and the difficulty immediately ensued. The evidence is in conflict as to who began this difficulty. Appellant and his witnesses say that Marshall English caught appellant by the collar and began beating him in the face, crowded him back on the rostrum, threw him to the floor, got on him, and another of the English family friends came into the front door and shot appellant while the others were yet on him. The state's witnesses contend that appellant began the difficulty by striking Marshall English in the face, and that appellant shot English before anybody shot him. The contradictions and conflicts of the testimony of this case are rather peculiar. The state's theory, in addition to what has been above stated, was that appellant was standing in the house and Marshall English, and one of his friends entered and passed near where he was, and appellant struck him; that Marshall English, the deceased, then struck him, and a fight ensued between them, in which appellant pushed English back to the rostrum, and during the trouble shot him twice, once in the leg, and once in the body. Appellant's side of the case was that he was standing at the designated spot, when deceased and a friend entered, and deceased struck him, and the fight ensued, and that they pushed him back against the rostrum and onto it, and had him down and were beating him; that there were four, five, or six of the Englishes and their friends engaged in the difficulty, and Marshall English was on him. Some of the testimony goes to show that Marshall English, when shot, was standing up bending down over appellant and beating him. Appellant says in this condition that he was shot by one of them, and that he immediately got his pistol out and fired two shots rapidly. The evidence for the state controverts this, as before stated, and shows all of these people were not on him. One of the state's witnesses, however, testified that he ran up, jerked his pistol, and struck appellant over the head once or twice as hard as he could hit him, and that the pistol, by force of the jars, was discharged, and, he supposes, struck appellant. There is a great deal of testimony as to the relative size of the parties, but it may be fairly stated that deceased was a larger man and stronger and much younger than appellant, the deceased being 25 to 28 years of age, and appellant about 50, and weighed 128 pounds, while deceased weighed considerably more.

Taking into consideration all these conflicts as to the relative size of the parties and the number of parties engaged in the difficulty at the time of the homicide, there are some facts that might be mentioned under the evidence still more peculiar. The clothing worn by appellant — shirt and undershirt—were introduced in evidence before the jury to show the position of the holes which corresponded with the holes in appellant's body as to where he was shot. His wife testified that she looked at him and examined him, and saw the doctor examine him. She says he was so bloody she did not recognize him at once, and did not know her husband was engaged in a difficulty until she noticed his clothing, and then she discovered the fact that it was her husband. She, with quite a lot of other witnesses, testified that the first gun fired was from the English party, and that the other shots followed from the man on the floor, who she afterwards ascertained to be her husband; that immediately upon ascertaining it was her husband she asked him what was the matter. His reply was that "`Ben James and Marshall English have tried to kill me.' I said, `Mercy sakes, what is the matter?' and he said, `Ben James and Marshall English have tried to kill me.'" Ben James is the party who struck with the pistol. She describes the wounds on appellant, and said she saw the doctor probe and examine the bullet wounds; one bullet entered his chin, went through his jaw, and came out through his lip; that it came through his mouth and scorched his lip and tongue; that his tongue was burned. The other bullet entered the left side right at the waist line, and "came out by the breast." The doctor probed for the bullet, and found that it went out that way. In further describing the wound, she said she found the hole in the shirt and in the undershirt, and the position of the holes corresponded with the holes in his body. This shirt and undershirt were introduced before the jury. She says her husband was cut across the face with a knife; that it looked like it was nearly to the bone, and across the nose there was a knife cut. When the doctor dressed the bullet wounds, he also dressed these other wounds. He had a good many bruises on him, and it is also shown there were two scalp wounds on his head. One was closed with five stitches, and the other with three stitches. All the evidence indicates that he was very bloody when he emerged from the combat. The state introduced evidence and contended that the original fight occurred only between Marshall English and the defendant, and that Ben James and the others got into it subsequently, and disclaimed using a knife, and that after James struck appellant twice with his pistol on the head, and the pistol was discharged in this way, that he then became engaged in a contest with the son of appellant over the pistol; so it will be observed that the testimony is very wide apart as to how this transaction occurred. If appellant was shot through the jaw and the mouth, as testified to, and in the side, he must have been shot twice; yet the bulk of this testimony shows there were but three shots fired. It is seldom the case that a record comes before this court where the evidence is so variant and conflicting by eyewitnesses as shown by this record. This much of the testimony is collated in order to bring in review the court's charge, exceptions thereto, and special instructions requested.

There is no definition of manslaughter or murder contained in the charge of the court. The court informs the jury:

"The indictment embraces both murder and manslaughter."

Then follows this charge:

"If you believe from the evidence beyond a reasonable doubt that the defendant began the difficulty with the...