Wiley Norman v. The State, 26 Tex. Ct. App. 221

Hurt, Judge. This conviction is for murder in the second degree. The facts attending the homicide are related by the witnesses as follows: Mrs. Davidson, widow of the deceased, testified; “I saw the defendant shoot and kill the deceased. The defendant married my niece, and we were living in the same house. * * At the time of the killing a coolness had existed between the defendant and deceased for about two weeks. I noticed that they had stopped speaking. * * About one o’clock the wife of the defendant left the house, saying that she was going to the field to assist her husband. She took her only child with her.

About one hour by sun she returned, and the door to her part of the house having been left open by some of my children, some words took place between us, and my husband, hearing the same, as he was plowing near by, asked what was the matter, and, being informed, some words were exchanged between him and the wife of defendant. While he did not curse her he used some ‘cuss words;’ the words between them amounted to but little. Mrs. Norman (defendant’s wife) then left and was gone one half hour.

When she returned she acted like she was excited. * * She kicked the door open, and from what I could hear I think she was putting on her shoes. I was sitting on the gallery at a point where I could not see my husband at the time. About the time Mrs. Norman came up I heard the voice of a man, can’t say who, and I went to where I could see my husband holding on the plow handles [he was plowing cotton].

At this time I saw defendant taking his gun partially down from his face, and just at this time he put the gun back to his face and fired, when my husband fell to the ground, and, starting to rise, defendant fired again, when deceased fell over and expired.” Mr. Lowder testified: “On the day of the shooting I was in the field plowing, about one hundred and fifty or two hundred yards from where defendant and Doctor Bolling were hoeing cotton. About one or two hours by sun I saw Mrs.

Norman in the field, and soon after the defendant came by where I was plowing, and said that deceased had been abusing his wife, and that he was going to the house to make him take it back. * * * I saw that he was mad. I knew that a coolness existed between defendant and deceased.” Mrs. Norman testified that, in the quarrel at the house, deceased cursed her and called her a d—d bitch. “I then went to the field and told my husband that deceased had been cursing and abusing me, and that he had also threatened to kill him before night unless he moved away.

I told Norman, among other things said was that deceased called me a d—d bitch.” J. N. Bolling, who was with defendant when Mrs.

Norman came to him in the field, testified that she “came up crying, and told her husband that the deceased had been cursing and abusing her, and had also threatened to kill defendant. * * * Defendant asked her what it was all about, and she said.‘Ton know.’” A witness for the State testified that the defendant told him “that he had killed Davidson * * * for abusing and cursing his wife; he also said something about deceased having threatened to kill him before night—that is, that he was so informed by his wife.” The evidence further shows that defendant went by the house of the witness Lowder and secured Lowder’s gun, and that the homicide occurred at about the time it would take him to go from the field where he was at work, by Lowder’s house, to the place where deceased was killed.

It will be seen that the question is: Does the evidence support the conviction for murder in the second degree? Appellant, by counsel, contends that the killing resulted from the passion produced by the insulting words used by the deceased towards his, appellant’s, wife, and therefore that he was guilty of no greater offense than manslaughter. At common law, under the circumstances attending this homicide, the slayer would have been guilty of murder. But a very great concession is made to the weakness of our nature by the statute of this State.

Hence, if the killing takes place at the first meeting of the parties after the party killing has been informed of such insult, the slayer would be guilty of manslaughter and not murder; provided the insulting words were the real cause which provoked, the killing. Here there is a question of fact tó be solved by the jury, it being expressly provided by

article 600, Penal Code, that “the jury shall be at liberty to determine in every case whether, under all the circumstances, the insulting words were the real cause which provoked the killing.” In this case the jury have determined that the insulting words were not the real -cause which provoked the killing. In thus determining, have they, under the facts of this case, abused their discretion and arbitrarily deprived the appellant of his rights given him by the statute? Are there no facts in the record justifying the jury in attributing the killing to other causes besides the insulting words? We think so.

The killing may have been induced by the threat made by deceased to kill defendant before night, unless he moved; or it may have been caused by the reference which was made by deceased in the altercation of words between deceased and appellant’s wife, which is not named; for, when Mrs. Norman told her husband that the deceased had been cursing and abusing her, etc., appellant asked her “what it was all about?” and she answered, “you know.” This clearly shows that there was another matter in regard to which a bad state of affairs had grown up between the parties. Opinion delivered October 24, 1888.

Counsel for appellant objects to the charge of the court upon the law of manslaughter. In the record we find bills of exceptions relating to the charge, but they are very general. The fifteenth clause is specially alleged to be erroneous. It is as follows: “If you believe from the evidence, beyond a reasonable doubt, that the defendant * * * did unlawfully and voluntarily shoot and kill J. D. Davidson with a gun, and you further so believe that, at the time of such killing, the defendant had been informed that J. D.

Davidson had used insulting words towards the defendant’s wife, and killed him at his first meeting with him thereafter, under the immediate influence of the passion arising in his mind from such information, and that such passion was sufficient to render his mind incapable of cool reflection, then you will find him guilty of manslaughter.” This charge very clearly and pertinently applies the law to the facts of this case, and is without error, especially when viewed with reference to the whole charge. There is no error specifically pointed out in the bill of exceptions.

Appellant objects to the following expressions in the charge upon manslaughter: “If the person guilty of the homicide is informed and believes,” etc.; “and if such passion was sufficient to render the mind incapable of cool reflection.” Viewed in their real connection with other parts of the charge upon the law of manslaughter, we can perceive no error in these excerpts. There is no evidence presenting the question of self defense, and the court did not err in refusing to charge thereon. We find no error in this judgment, and it is affirmed. Affirmed.