Winters v. State

• Decision Date: 24 June 1899
• Citation: 51 S.W. 1110
• Parties: WINTERS v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 1110

WINTERS v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1899.

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

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

Smith, Wear & Phillips, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Conviction for murder in the second degree, punishment being assessed at 14 years' confinement in the penitentiary.

On a former appeal (40 S. W. 303) the judgment of murder in the second degree, assessing the punishment at 25 years' confinement in the penitentiary, was reversed, because of the error of the court in charging the law applicable to provoking a difficulty. It is contended on this appeal that the trial court again erred in regard to this question. The testimony shows that appellant, at the request of the daughter of deceased, visited her on Sunday prior to the homicide, and deceased ordered him from the place, and in doing so used violent, abusive, and profane language. It seems he was angered because of a horse trade which appellant had made with his son Horace. On the evening of the homicide, appellant, with three companions, were in a public road, and deceased, traveling the road, was in the act of passing them. Appellant requested deceased to apologize for the insulting conduct on the previous Sunday, and was met with a prompt refusal. During the altercation deceased drew his knife, jumped from his horse, and approached appellant, who had also alighted. This meeting terminated in appellant firing several shots into the body of deceased, with fatal results. Appellant's theory was that he accosted deceased for the purpose of asking an apology for his prior insulting conduct, and not for the purpose of producing an occasion for or provoking the difficulty, with the view of killing deceased. The state's theory was supported by evidence to the effect that appellant armed himself, and waited for deceased, anticipating meeting him, and for the purpose of provoking him into a difficulty, with intent to take his life, and in this connection adduced evidence to the effect that he knew the irascible temper of deceased, and that by approaching him in the manner he did deceased would draw a knife, with the view of using it, and, when he did this, he intended killing deceased. The court, in rather general terms, charged the jury that, if appellant sought deceased for the purpose of provoking the difficulty, he would not be permitted to justify upon the ground of self-defense; but, if he had no such purpose in seeking the meeting, his right of self-defense would not be abridged or forfeited. He charged, further, that if defendant requested an apology because of the prior insults, but with no intention of provoking the difficulty, with intent to take the life of deceased, provided deceased resented it, then his right of self-defense was not abridged or forfeited. It may be conceded that the charge as given was rather inartistically drawn, and did not present the...