48 S.W. 178


FRANKLIN
v.
STATE.


Court of Criminal Appeals of Texas.


December 14, 1898.

Appeal from district court, Freestone county; L. B. Cobb, Judge.

Jim Franklin was convicted of murder in the second degree, and he appeals. 
Reversed.

Boyd, Compton & Anderson, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of murder in the second degree, and his punishment 
assessed at confinement in the penitentiary for a term of 15 years; hence this
appeal.

But one bill of exceptions appears in the record, and this was reserved to the 
refusal of the court to give a requested instruction upon the law of 
manslaughter. Under the evidence adduced for the state, the jury were justified 
in finding appellant guilty of murder in second degree. The testimony upon 
which appellant relied as a basis for the requested charge on manslaughter is 
found mainly in the evidence detailed by himself, with some supporting testimony
from other witnesses. Defendant's testimony is to the effect that, during the 
month of May (prior to this homicide in September), he caught deceased in 
adulterous intercourse with a woman on the roadside. This "leaked out" in the 
community, and the deceased became offended on account of it. Later on, a 
petition was gotten up to remove deceased as a school trustee, and deceased 
accused appellant of having instigated it. This brought up further trouble 
between the parties. However, after talking the matter over, appellant says that
they became reconciled; at least, such was his conclusion. In regard to the 
matters stated, deceased had made threats against appellant; and, on the day of
the homicide, he had been warned by a friend of these threats, who suggested to
him that he had better be on his guard. Appellant and deceased had a 
conversation in Fairfield, on the day of and preceding the homicide. They lived 
in the same neighborhood, and traveled the same road in returning home. The 
deceased and Ab Daniels left town in advance of appellant. He overtook them, and
deceased began to abuse him, and said he ought to be killed, and rode in front
of defendant, who was in a buggy or wagon, driving a mule. Deceased was riding
a mule, and Ab Daniels was on horseback. In regard to the further occurrences 
between the parties, appellant testified: "I reasoned with him, and told him I 
had not done anything, and I thought that he was satisfied. He rode outside the 
road, and we went a short distance, when deceased again rode in front of me, and
stopped me, and abused me. After again reasoning with him, we went on, and met 
Jack Jones. Jack asked me if I was `taking them in.' I said, `Yes.' Deceased 
said, `You are a liar,' and got down, and took hold of my line, and stopped me.
Finally I persuaded him to let me go. He stopped me again near the bridge, just
beyond Mr. Cain's; and again, just beyond Jack Jones' house, deceased caught my 
line, and stopped me, and said that I was the most hellish nigger he ever saw,
and that I was the biggest liar he ever saw; that I ought to be killed; that he 
intended to whip me; that he paid $750 for one nigger, and that he would pay it
again; that I had lied about that petition, and about that girl. I then began to 
get scared, sure

Page 179

enough. Finally I got loose from him, and drove on a short distance, and met 
Billy Lemmons. And deceased and Daniels stopped to talk with him, and I drove 
on to John Jones' gate, and got out, and went to his house, and bought his 
pistol. Deceased and Daniels passed. Some twenty minutes later, I drove on to 
the cane mill, and Oce Jones called me by. I stopped, and talked to Oce Jones 
and Henry Jones. I did not speak to either Ab Daniels, Dick Tatum, or Scruggs 
while there. I had a talk with Oce Jones about the election of a county chairman
of the Republican party. Scruggs came back for his coat, and the deceased and 
Daniels went on, and were out of sight over the hill when I started. Scruggs and
I left the cane mill about the same time. When I drove over the hill, I found 
deceased and Daniels stopped. Deceased was off his mule. He accused me of having
a pistol. I denied it. Deceased said, `You have got a pistol, and you have got 
to use it.' Scruggs said to deceased, `I will have nothing to do with this 
matter, but you all ought to let Franklin alone.' We then started off down the 
road. Daniels and Scruggs dropped back. I drove away with deceased after me. He
got ahead of me in a short distance, and stopped me again, just opposite Mr. 
Ledbetter's tank. When Tatum got out of the road, I put whip to my mule, and 
kept it in a trot and loping down the road. I thought that I would get away from
deceased. Deceased ran his mule, and kept up with me; rode along on my right 
side, until we got a short distance below a small tank below Lindsey's, when 
deceased rode in front of me, and turned my mule out to the left side of the 
road, and ran it up against the fence. My mule's head was to the east. Deceased
turned his mule clear around, and had his right side to me. There were several
poles lying near my mule's head. Deceased, when he stopped me, and turned round, 
said, `I'll burst your brains out;' then said, `No, I'll shoot your heart out,
' and put his hand back towards his hip pocket. I had raised up in my buggy, 
and, as he put his hand back, I shot him. I shot rather over the dashboard. 
Deceased was in front of me when I fired the first shot, and had his eyes right
in mine. My mule's head was rather southeast, and his mule's head rather 
northwest, when I first shot. Deceased's mule then began to pitch, and I shot
him again. I shot three times. Had a self-action pistol, and pulled the trigger
as fast as I could. The last shot the pistol just went off. I was not trying to
shoot him then. Deceased fell off his mule towards me, and fell near the wagon 
rut on the east side of the road. I pulled my mule back, and drove around him on
the west side." Other witnesses testified to the fact that the buggy or wagon 
tracks drove out of the road at the place of the homicide. There is also other
evidence, both for the state and defendant, of a quarrel between defendant and 
deceased at the time they met Lemmons or Jones. That is an uncontradicted fact.

We believe that, under this state of case, a charge on manslaughter should have 
been given. While this evidence may not be true, and the court may have regarded
it as false, yet it suggests the issue of manslaughter. If the deceased stopped 
the defendant, and in the manner stated by him, on the occasions testified by 
him, on the public highway, and followed him up to the point of the homicide, in
the manner indicated, and rode in front of him, and blocked his passage in the 
manner and by the conduct, as testified by appellant, under all the 
circumstances, it occurs to us that it was a cause upon which could be 
predicated sudden passion, such as to render appellant's mind incapable of cool
reflection. At least, this should have been submitted to the jury. It is clear 
that the deceased had no authority to stop defendant traveling along the public 
highway in the manner indicated. It was in violation of his rights as a citizen.
It was in violation of the laws of the state; and, if the testimony is true, 
the deceased was guilty, perhaps, of false imprisonment; and this, connected 
with the rough manner in which it was done, was calculated to arouse his 
passions to such an extent as to demand, under our statute, a charge upon 
manslaughter. The court not only failed to charge on manslaughter, but refused
to give appellant's requested instruction, and to this refusal he only reserved
his bill of exceptions. For the error of the court in failing to charge the law
of manslaughter, the judgment is reversed, and the cause remanded.