Davis v. State , 37 Tex. Crim. 371 ( 1896 )

Appellant was convicted of murder in the second degree, and his punishment assessed at ninety-nine years in the penitentiary, and prosecutes this appeal. This is a peculiar case. Two motives appear in the record for the homicide: First, that the appellant had been endeavoring to have carnal intercourse with his daughter while a maid. This daughter afterwards became the wife of the deceased. She informed her husband (deceased) of the conduct of her father (defendant), whereupon the deceased stated to the appellant that be would give him five days in which to leave the country, and that if be did not do so he would kill him. If the testimony of Mrs. Williams (the daughter of appellant and wife of deceased) is to be believed, appellant, when charged with this conduct, at first denied it, but afterwards, in the same conversation, admitted it. The second motive for the homicide presented by the record is that the deceased had said that the wife and eldest daughter of the defendant had been sleeping with negroes. We are left in doubt from the testimony as to which provocation prompted the appellant to commit the homicide. It is shown that he told one of the witnesses that he had gone to the deceased and demanded a retraction, and, failing to obtain this, that he bad shot him, shooting him twice. Now, we are not informed what be wanted the deceased to retract — whether statements in regard to him and his daughter (the wife of the deceased), or whether in regard to the conduct of his wife and eldest daughter in sleeping with negroes as charged by the deceased. If for the first, it wits not such a legal provocation as to reduce the homicide to manslaughter. If for the second, this being the first meeting after be bad been informed of the insulting language towards his wife and eldest daughter, it was a legal provocation, such as by statute might reduce the homicide to manslaughter. The court instructed the jury upon every phase of this case presented by the evidence. Murder in both degrees, and manslaughter arising from the hypothetical conduct and words towards a female relation, were submitted to the jury as favorably to the defendant as could be required under the facts of this case. In fact the charge of the court is an admirable application of the law to the case. Counsel for appellant objected to the charge, because it did not inform the jury that they could look to the threats made by the deceased in order to determine whether the provocation was sufficient. We do not agree with counsel in this contention. If provocation at all is in this case, as before stated, it was the insulting words in relation to the wife and eldest daughter of the defendant. It was not by reason of any violence or threatened violence on the part of the deceased towards the appellant. How threats could figure in such a case we cannot perceive. The jury apparently gave a very severe punishment — ninety-nine years in the penitentiary for murder in the second degree. We account for this upon the hypothesis that they believed this matter pertaining to the insulting words attributed to the deceased in regard to the wife and eldest daughter of the defendant as sheer fabrication, and that the jury attributed the homicide to the other provocation alone, to-wit: that as lie had been charged with, and as be had confessed to, attempts to have carnal knowledge of Mrs. Williams, his own daughter, and bad been ordered to leave the country, he proposed to take the law in his own hands and kill the deceased. They evidently believed Mrs. Williams that lie was guilty of such conduct, and upon this theory of the case we account for the apparently severe punishment. There are no bills of exception in the record. We have carefully read the statement of facts and the charge of the court, and find no error in the judgment. The judgment and sentence of the lower court is affirmed.

Affirmed.