Holcomb v. State

Appellant was convicted in the District Court of Haskell County for murder, and his punishment fixed at five years in the penitentiary.

Appellant was informed that his single daughter was pregnant, and that deceased was the author of her condition. The alleged injured daughter testified that she told her mother "and them" of what deceased did to her about the 15th of November, the alleged assault upon her having taken place in October preceding. The wife of appellant testified that her daughter did not tell her of her condition until February. This killing took place some time in March following. Deceased was sitting in a car and appellant and his son armed with guns approached and both fired. A pistol was found in the pocket of deceased after his death.

There are four bills of exception. One complains of the rejection of the testimony of a Mr. Link, but the qualification of the learned trial judge shows that this witness was subsequently allowed to testify to the matter set out in the bill of exceptions. The second bill of exceptions complains of the same matter and is approved with the same qualification.

The third bill of exceptions complains that an attorney employed to assist the state, in the course of his argument, looked toward appellant and said: "Gentlemen of the jury, he (meaning the defendant) will bear the mark of Cain on him as long as he lives, no matter what the verdict of this jury may be." We are not able to agree with the contention that this was a matter of such serious import as to necessarily or likely cause injury to the appellant. It was not the mention of any fact material to any issue of the case which appears to be dehors the record. It was not the use of any language abusive or likely to prejudice the jury against appellant. We do not think the matter of such serious nature as to call for an extended discussion. Barrer v. State, 83 Tex.Crim. Rep..

The fourth bill of exceptions complains of the rejection of testimony from appellant as to what he told the witness Link referred to in the first and second bills of exception. This bill is also qualified by a statement of the learned trial judge to the effect that he permitted the defendant to testify regarding this matter.

We are not inclined to the view that the evidence does not justify a verdict of guilty of murder. As we understand it, there was no intention on the part of our lawmakers to say that a man who is informed of an insult to his female relative may deliberately plan to kill, and then carry his plan into execution without any of those evidences of passion and excitement which are to be passed upon by the jury — and then claim any right to a conviction only of manslaughter. Our statutes reduce a killing to manslaughter when the jury are of the opinion from the evidence before them that there was in the mind of the slayer such rage, excitement or passion, arising from an adequate cause, as to render the mind of the slayer incapable of cool reflection from which the killing resulted. The statute names an insult to a female relative as an adequate cause to produce this condition of mind, but the jury are in nowise deprived of their right to say whether in a given case, even though there be proof of the existence of that which our statute makes adequate cause, the mind of the slayer was in that condition of rage, excitement or passion as to render it incapable of cool reflection. In the case before us the record reflects rather extended efforts on the part of appellant to bring about the marriage of his daughter and deceased after receiving information of her condition. Friends of appellant were appealed to to effect said marriage. Efforts were made to induce deceased to discuss the matter with appellant or his sons, The record further shows that deceased refused to marry the girl, claiming that he was not guilty, and that he also refused to leave the country. The jury may have believed that the motive for the killing was, in part or in whole, the refusal of deceased to marry the girl.

Without discussing the matter further, we are of opinion that the record does not show that the jury were swayed or influenced by passion or prejudice in their refusal to convict appellant of manslaughter and in rendering a verdict of murder. Bollin v. State, 93 Tex. Crim Rep. 452. The sensibilities of juries in this country and their ordinary tenderness toward those who seek to justify or mitigate a homicide when the motive assigned is that the deceased had insulted a female relative, present themselves in many records before this court. The verdict in this case does not seem to be the result of hasty consideration or prejudice on the part of the jury.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.