212 S.W. 954 | Tex. Crim. App. | 1919
Under an indictment for murder appellant was convicted of manslaughter.
He shot and killed Ben Johnson. Both parties were negroes. The homicide took place in the village of Gause. The difficulty begun on a gallery in front of a restaurant kept by a negro named Perry. The adjoining house belonged to Mrs. Rhodes. It had been occupied by deceased and used for a restaurant, but a short time before the homicide she had leased it to appellant, who intended to use it for a like purpose. There is evidence that the deceased was opposed to the use of the premises by the appellant, and that he had on several occasions expressed his intention to kill the appellant in the event he did occupy Mrs. Rhodes' premises, some of these threats having been made in the presence of appellant, and others communicated to him. One witness testified that a very short time before the homicide he met deceased who told witness that he had been mistreated, and that he was going to kill the appellant before sundown; that later he met the appellant and communicated to him this fact, and advised him not to go about the premises. Appellant testified that he had refrained from opening the restaurant in the building that he had rented from Mrs. Rhodes on advice from her, awaiting the departure of the deceased and fearing injury from him; that he had put some property belonging to his uncle in the building; that the deceased's wife had obtained a note for $20 against him, which note belonged to a man by the name of Williams, *395 and had insisted upon its payment on the day of the homicide, and that he had notice of a fire about his premises and had gone to investigate its cause, and met the deceased who upbraided him about not paying the note, and told him if he did not do so he would kill him, and that at that time he made an assault upon him, kicking his shins and exhibiting a pistol; that he called upon Mr. Rhodes, a white man, who interfered, and he then went to his home and got his pistol, and on his route back to town received the information that the deceased had said he was going to kill him before sundown; that at the request of his uncle he went to the building which he had rented to permit the property belonging to his uncle to be removed. He said: "I walked on up on the restaurant gallery and deceased run around behind me and I whirled around and pulled my gun on him, because he had been threatening my life, knowing he would injure me if he could. He run under me like and I struck at him with the gun and the gun went off." A struggle followed and the parties went into Perry's restaurant. Appellant said they both fell to their knees, and that Mary Johnson, the wife of deceased, joined in the affray, using a knife, and that in the struggle the deceased appeared to be trying to get something from his clothing; that during the struggle appellant jerked loose and fired at deceased, who ran to the back door, and appellant thinking deceased was trying to get his gun followed him and fired again. There was evidence that the appellant's uncle and wife also engaged in the affray after it begun and while they were in the restaurant. The deceased received two gun shot wounds; one of them fatal.
Appellant's theory was that the deceased had come to the premises for the purpose of carrying his threats into execution. The State explained his presence at the place of the difficulty by the testimony of his wife, upon the admissibility of which there arises one of the legal questions presented by a bill of exceptions, and is, in substance, that she testified that after having an altercation with the appellant some time before the fatal encounter on the same day, the deceased had left the premises, and that he and witness were ready and preparing to go to their home when the deceased remarked that he had not mailed his letters, and she told him to go by the postoffice and mail his letters and meet her at the restaurant. That he went to the postoffice, and she went to Perry's restaurant where he had told her to wait and had said that he would come straight there, and they would go home together. Appellant insists that he having no knowledge of this conversation, or the intent which is attributed to the deceased, and that the actions of the appellant were governed by the information in his possession, that there was error prejudicial to him in admitting in evidence the undisclosed motive of the deceased. The same question of law arose in the case of Adams v. State, 44 Tex.Crim. Rep., in which the presence of the deceased at the place of the homicide was explained by evidence *396
that he was in the habit of making visits to his father, and that he was at the time on such a journey. The court held its admission erroneous, quoting Johnson v. State, 22 Texas Crim. App., 222, in which case exception was reserved to the admission of testimony "that deceased was going on the next day to make up a party at Grade Smith's on Monday night." The court said: "Obviously the purpose of this testimony was to show that deceased was entertaining no deadly purpose or intent when he went to Caddo Mills, the place of the homicide, and that he did not go there to carry out the threats he had previously made against defendant's life We are of opinion the evidence was inadmissible, it being hearsay so far as defendant was concerned, and as such it was not binding upon him. . . . It is a maxim of the law that a man is only bound so far as matters reasonably appear to him; he cannot be bound by motives locked up and hidden in the breasts of others. Deceased's undisclosed and undiscovered motives in going to Caddo Mills was not a material issue, and could throw no light whatever upon the guilt or innocence of defendant, whose motives alone were the important issue to be tried." This principle has been applied in a number of instances, among them, Pratt v. State, 53 Tex.Crim. Rep.; Gray v. State, 47 Tex.Crim. Rep.; Burnett v. State,
As presented we discover no error in the matters touched in the other bills of exception.
For the error mentioned the judgment is reversed and the cause remanded.
Reversed and remanded. *397
