Winters v. State

• Decision Date: 28 April 1897
• Citation: 40 S.W. 303
• Parties: WINTERS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 303

40 S.W. 303

WINTERS v. STATE.

Court of Criminal Appeals of Texas.

April 28, 1897.

Appeal from district court, Hill county; J. M. Hall, Judge.

George Winters was convicted of murder in the second degree, and appeals. Reversed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at a term of 25 years in the penitentiary; hence this appeal. There is but one assignment of error that requires to be considered, and that is as to the charge of the court on self-defense. We will state enough of the facts of the case to show how the question of self-defense arose. It appears that some two weeks before the homicide the defendant was keeping a livery stable in the town of Brandon, in Hill county, and the deceased lived on a farm several miles in the country. Some two weeks before the homicide defendant made a horse trade with a son of the deceased. The deceased, shortly after the trade was made, being dissatisfied, went to the livery stable of the defendant, and demanded the return of the horse defendant had received from his son. The defendant refused to surrender the same, and an altercation ensued, in which the deceased was the aggressor, and he drew his knife on the defendant and abused him. Parties interfered, and prevented him from making the assault. It also appears that defendant was a suitor of Miss India Shirley, a daughter of the deceased, and that, about a week after the altercation at the stable, defendant, being invited, called on Miss India Shirley, at her father's house. While there deceased came to the door of the room, and defendant remarked to him that he did not want him to think hard of him for trading for the mare from Horace Shirley; that he would offer an apology, and hated that any misunderstanding had grown out of it. Deceased, instead of accepting his apology, cursed and abused him, commanding him to leave his house. Defendant left, the deceased pursuing him with his knife in his hand. The theory of the state, which is supported by some evidence, is that on the day of the homicide defendant and three other young men were breaking horses, and with design defendant had them go in the direction of the deceased's house, for the purpose of meeting the deceased and bringing on a difficulty. In this connection the state proved some threats made by the defendant against the deceased to the effect that, if he caught the deceased out, he would bring on a difficulty with him, and he knew what the deceased would do; that he would draw his knife on him, and then he would "fix" him. The theory of the defendant was that, with no design of meeting the deceased, defendant and his companions, by accident, rode in the direction of deceased's house. At any rate, the proof shows that the parties did ride in the direction of the house of the deceased; that when near the house defendant wrote a note, and sent it by one of his companions to give to a boy who lived on the deceased's place, by the name of Knight, to deliver to Miss India Shirley. The testimony in this connection shows that this was a preconcerted arrangement between the parties, as Miss India, in response to said note, sent a letter to the defendant. It appears that the parties went near the house of the deceased, and stopped at the mouth of the lane, and were there deliberating as to whether two of them should return and not proceed further, when the deceased, Shirley, rode up. According to the defendant's testimony (and his witnesses were the only parties close by and heard and saw all that occurred), the boys spoke to him, and he returned their salutation. Defendant said, "Mr. Shirley, I want to see you." He stopped, and defendant said, "Don't you think you owe me an apology for the way you treated me last Sunday?" He said he did not. Defendant said he had hurt his feelings the way he treated him. Deceased then cursed defendant, and called him a damned son of a bitch. Both parties then alighted from their horses about the same time, deceased drawing a large spring knife and opening it. The parties were pretty close together when they alighted, the horse of the defendant being between them. Deceased came around the horse with his knife in his hand, cursing and abusing defendant. Defendant told deceased not to come on him with that knife, and cursed the deceased. Deceased still advanced, and defendant shot him. Some of the witnesses indicate that the first shot did not take effect; that the second shot did, going through his arm and breast. Two of the shots entered the back of the deceased, coming out in front. These shots had an upward tendency, according to the testimony of all the witnesses. This was accounted for on the part of the defendant's witnesses by the fact that, after the first two shots were fired, the deceased rather staggered off, and was stooping over or to one side when the other shots were fired. Defendant explains as to his continued firing, after deceased had staggered off, that the smoke was such and the excitement that he did not know what the deceased was doing but that he thought he was advancing on him all the time. The state introduced some witnesses who were at a distance from the scene of the homicide, tending to show that the deceased was on his horse at the time he was shot, and the defendant on the ground; that the deceased fell off of his horse after he was shot. No blood, however, was found on the saddle or on the horse, and this theory was denied by all of the defendant's witnesses who were at the scene of the homicide.

On the question of self-defense the court charged the jury as...