Simmons v. State , 31 Tex. Crim. 227 ( 1892 )

This appeal is from a conviction of murder in the second degree. The evidence shows that Williamson, the deceased, had gone to Simmons' gin on two occasions on the day of the homicide, inquiring for appellant, threatening to kill him on sight, and charging him with having insulted Delia Evans, who was deceased's step-daughter. On both occasions the deceased was armed with a gun. After the second visit of deceased to the gin, Robert McCorkle and his wife, defendant's wife, and defendant's father, all being advised of the charges, threats, acts, and conduct of deceased, were at the house of defendant, which was about seventy-five yards from the gin. Defendant had just returned home. All the parties at the house advised appellant to arm himself. They talked about what was best to do, and while they were talking the deceased rode up to the gin, with a turn of corn on his horse. This was his third visit to the gin that evening. On this occasion he had no gun. He got off his horse, took off the sack of corn, and sat down near the mill house. Appellant and McCorkle and his step-brother, Darnell, started over to the gin to talk to deceased, and see if they could not compromise the matter by telling deceased where appellant had been during the day. Appellant started without his gun, but turned back and got it. Appellant and Darnell stopped at the gin lot gate, and McCorkle went to where the deceased was, and told deceased that he had seen appellant, and that he had not seen Delia Evans that day. Deceased replied that appellant need not deny it. After some further conversation, McCorkle returned to the gate, and told appellant; that deceased said "he need not he to try and act out of it; that he had done what the girl said." Defendant said, "I will go and see him myself," and went to the lot where deceased was. At the time deceased and Robert McCorkle walked out from the gin to talk together, Turner Ursery followed them out, and overheard the conversation between them, and saw McCorkle go to the gate where appellant was.

Ursery testified to the facts immediately connected with the homicide, in substance, as follows: After McCorkle left deceased, Ursery remained standing by the bale of cotton where deceased was, and said to him (deceased), "Hud, it would be better to settle this without a fuss, if you can settle it by law." Deceased replied, "I ain't got any money to go to law." Ursery said, "Carry it to the law; that will be better than to have a fight over it." Deceased replied, "God damn him, I will kill him, if they send me to hell in a minute." About that time deceased said, "Go back from here; go back from here," and motioned his hand in a southerly direction. Ursery straightened up from the bale of cotton on which he was leaning, and saw appellant standing there with his gun, he having walked up from the gin lot gate, where he had left McCorkle. He was holding his gun in his right land, and was about twelve feet from deceased. Deceased came around the bale of cotton, like he was going to appellant, and when he got in front of the muzzle of the gun, Ursery stepped forward and turned the gun around with his right hand, and deceased sprang forward and caught the muzzle of the gun with his left hand. Deceased and appellant jerked the gun backwards and forwards a few minutes, and then appellant caught the gun barrel with his right hand and turned it to deceased's breast. Then Ursery grabbed the gun with his right hand and shoved it back with his left hand. This threw the parties some few feet apart, and then appellant said, "I haven't seen your girl to-day." Deceased replied, "You are a damned liar," and started towards appellant. Deceased had a knife in his right hand. Appellant said, "Don't come on me." Deceased kept coming on towards appellant, and got within about six feet of him, and had his knife in a position to strike. He had his left hand shut up, holding it in front of his breast. Ursery sprang forward between them, and said, "Let us not have any of this, boys." Deceased then drew up his right hand in a position to strike, and appellant pushed his gun under the arms of Ursery and fired. At the time the gun fired, deceased had his right hand up a little over his head, grasping the knife in it by the handle, with the blade sticking out from the lower side of the hand, and pointing forward. Ursery was between them, but did not have time to strike the gun before it fired, for he says, "When I sprang forward and threw up my arms, defendant 'jobbed' under them and fired." Deceased staggered back two or three steps, and moved backwards and forwards a time or two, and died in a short time. Appellant's gun was a short single barreled shotgun. This statement will be sufficient to enable us to properly appreciate the importance of the questions presented that we deem necessary to discuss in disposing of the case.

Counsel for appellant contends that the court erred in refusing to permit appellant to prove that while he was in his house, and in conversation with relatives, at the time when they saw deceased go to the gin, his mother-in-law, Mrs. Malissa McCorkle, upon seeing deceased at the gin, advised him (appellant) to go to the gin and tell deceased that he had been to the Graveyard Prairie, and had not seen Delia Evans, and had not insulted her, and that his father-in-law and step-brother and other relatives all approved of this course.

A bill of exceptions shows the following: The defendant called Thomas W. Simmons as a witness, and after proving by him that deceased had threatened to kill defendant, and that he went to defendant's house and told defendant about it, and that McCorkle and his wife and defendant's wife all came to defendant's house, and all talked the matter over; that the defendant then offered to prove by McCorkle that Mrs. Malissa McCorkle said that defendant ought to go down to the gin and tell Mr. Williamson that he had been to the Graveyard Prairie, and had not seen Delia Evans, and had not insulted her, and that Robert McCorkle said that was what they ought to do, and that they would go with defendant and try to compromise and settle the matter with Williamson; and that Darnell said, "Yes," he would go with him; that they surely could get Williamson to listen to reason. That defendant's wife expressed approval of this course, and so did defendant's father, and that thereupon McCorkle said, "Let's go." The State objected to this testimony, because immaterial, irrelevant, and hearsay, and the court sustained the objection. The bill of exceptions is approved, with the following explanation by the trial court: "I permitted all the witnesses to testify that defendant and others went to the gin for the purpose of reconciling Williamson, and explaining the matter to him, and, if possible, compromising with him, and only excluded the particular details of the conference held by defendant and his friends at home. I did not exclude the object and purpose of the visit, but did exclude the hearsay details of the conference at home."

We are of opinion that the proposed facts were admissible. That appellant was advised by others to go to the deceased and explain the matter was strongly calculated to corroborate the other witnesses as to the purpose of defendant in going to the deceased. As a criminative fact, the State found that appellant went to where deceased was, being armed with a gun. What was the state of his mind? For what purpose did he go? Was it a friendly mission, or was it for the purpose of killing deceased? The State's theory was that defendant went with malice in his heart; went to kill. Appellant contends that his mission was for a settlement, to prevent trouble with the deceased. At his house, about seventy-five yards from the gin, there was a consultation of his friends. They advised him to go and try to convince deceased that he (appellant) had not made an assault upon the young lady. Was this advice, under the circumstances, admissible evidence? "Upon an inquiry as to the state of mind, sentiment, or disposition of a person at a particular period, his declarations and conversations are admissible. They are parts of the res gestæ." 1 Greenl. Ev., 3 ed., 132; Chaney v. The State, 31 Ala. 342.

The State proved that appellant went armed to where deceased was. This fact was relied upon for the purpose of showing, in connection with other circumstances, that appellant intended to kill deceased. When appellant started to go to where deceased was, he started without his gun, and went back and got it. He proposed to prove, in explaining his conduct, that his step-brother, Darnell, told him that he had better take his gun; that he (Darnell) was satisfied deceased had a pistol. Upon objection by the State, these facts were rejected, and appellant reserved his bill. The proposed facts were clearly competent evidence, whether Darnell knew deceased had a gun or not, if he induced appellant to believe that deceased was armed with a pistol. When viewed in the light of the oft-repeated threats made by deceased, it was simply an act of prudence for appellant to arm himself.

In the course of the general charge the jury were informed, that "if the jury find from the evidence that Williamson made serious threats to take the life of defendant, and that defendant heard of such threats, then the defendant would have the right to arm himself, so as to be prepared to defend himself against the attempted execution of such threats; and if you further find that Williamson made the threats on account of information received, charging defendant with having insulted his stepdaughter, and that defendant in fact did not offer such insult, then he would have had the lawful right to approach Williamson in a lawful, orderly, and respectful manner, for the purpose of refuting such charge, and of reconciling Williamson by showing its falsity. But he would not have the right to approach Williamson with the apparent intention of provoking a difficulty with him, such as would likely result in some injury to either party." Bearing upon the same subject, the trial court gave the following special charge, at the request of appellant: "If you believe from the evidence that the deceased threatened the life of the defendant, and that these threats had been communicated to the defendant, he would have the right to go to the deceased with a view of peaceably and amicably adjusting their differences, if any; and this would be true, even though the defendant was guilty of the conduct that deceased charged against him."

The instructions we have quoted from the general charge were repeated in a supplemental charge. It is insisted by counsel for appellant that the instructions contained in the general and supplemental charges are incorrect, because the right of the defendant to go to deceased in a lawful, orderly, and respectful manner for the purpose of explaining and satisfying him, is made to depend upon defendant's innocence of the charge which deceased had made; that is, that he had not so insulted Delia Evans.

It is also insisted that, although correct instructions were given in the charge requested by defendant upon this subject, the main charge was not changed or otherwise explained, and was calculated to confuse the jury. Whether appellant was guilty or not of insulting the lady, he had the right to make an effort to amicably adjust the matter, though in doing so he should be guilty of lying. The charges on this subject are in direct conflict, and were calculated not only to confuse the jury, but the jury may have been governed by that portion which was erroneous. The objectionable charge was excepted to at the time. Bradley v. The State, 31 Ind. 492; Kingen v. The State,45 Ind. 519; 2 Amer. and Eng. Encyc. of Law, 249.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.