Carpenter v. State

The appellant was convicted in the District Court of Grayson County for manslaughter, and his punishment assessed at five years in the penitentiary.

The record discloses that the appellant was a locomotive engineer and the deceased, Burke, was his fireman. Prior to the homicide, it appears that the appellant had complained of the failure of the deceased to co-operate with him in operating the train, and failure upon the part of the deceased to properly observe the rules and regulations in connection therewith, and had filed charges to that effect with the proper officials. It was the contention of the appellant, and he testified to that effect, that prior to the day of the homicide, when he had called the deceased's attention to his failure to observe the rules and regulations of the company, that the deceased became very angry and said to him, "That if I did not keep my nose out of his business, that he would cut my damned throat." The appellant also testified that the deceased had a knife in his hand at the time, and every time he would call his attention to his neglecting his work he would get his knife and whittle on his nails, and things of that kind, and from his actions, appellant was impressed that he would injure him (appellant), and from that time on went armed. Appellant also testified that on the morning of the homicide, when he called the deceased's attention to his failure to keep the oil cans filled, that he became enraged and struck at him with an oil can about twenty inches long, including the handle and the bowl, and when full of oil would weigh about three and one-half pounds, and upon the appellant's stepping back, the deceased drew the oil can again to strike him, when he (appellant) in self-defense, drew his pistol and shot the deceased, the evidence discloses, about three or four times, and killed him.

The record discloses that the deceased was a man who weighed about 140 to 160 pounds and appellant from about 175 to 200 pounds.

Bills of exceptions Nos. 3 to 17 complain of the action of the court in permitting the state to introduce testimony from the witnesses therein mentioned that deceased's reputation for being a quiet, inoffensive citizen was good, and that Art. 1143, Vernon's P. C., Art. 1258 of the 1925 Code, does not authorize the introduction of evidence of good character of the deceased upon threats of the kind involved in this record, which appellant contends were conditional threats, and that the court was in error in permitting the state to show the good character of the deceased for the reason stated. The state's attorneys object to our considering said bills because they are in question and answer form and contrary to the statute of this state requiring said bills to be in narrative form. Each and all of said bills are subject to the criticism urged and objections raised, but in passing we desire to state that this court has held against the contention made by the appellant in Gilliam v. State, 272 S.W. Rep. 154. We might also state in this connection that said bills, as presented with the qualifications of the court thereon, show no error in any of the matters complained of.

Appellant strenuously insists that the evidence is insufficient to support a verdict of manslaughter and that this court should hold that the jury was unauthorized to convict the defendant, because there was no one present at the scene of the homicide except the deceased and the appellant, and the appellant testified to facts which were undisputed and showing that he was acting in his own self-defense, and therefore entitled to a verdict of not guilty. The learned trial judge submitted to the jury the law of murder, manslaughter, threats and self-defense, without any objection to his charge on the part of the appellant. The condition of the appellant's mind at the time of the homicide is a question of fact to be passed on by the jury, which is a well established doctrine of this court. This court also holds, and has held for many years, that the jury is not bound to take the testimony of the appellant or any interested party in the case, although same is uncontradicted. Hawkins v. State, 270 S.W. 1025; Key v. State,270 S.W. 1027; Horak v. State, 273 S.W. 601. Under the well established doctrine as above stated, the jury having passed on the issue as to the guilt or innocence of the appellant, their finding under the facts as presented by the record, is binding upon this court, and we are unauthorized to disturb the verdict rendered by them.

After a very careful examination of the entire record, we are forced to the conclusion that there is no error shown, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

Morrow, Presiding Judge, absent.

ON MOTION FOR REHEARING.