153 S.W. 321

MIMS
v.
STATE.


Court of Criminal Appeals of Texas.
January 15, 1913.

Appeal from District Court, Freestone County; H. B. Daviss, Judge.

Ben Mims was convicted of manslaughter, and he appeals. Affirmed.


Page 322

Bell & Fryer, of Teague, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was charged and tried for murder, convicted of manslaughter, and his penalty fixed at five years 
in the penitentiary.

On the night of November 5, 1910, a large number of negroes had a party of some kind at the house of one of
their number, at which they had a supper and also had articles for sale, and sold articles to raise money 
for some purpose. As seems to be the case on most occasions of the kind, there was more or less drinking by
some of the men in attendance. The day of the night of the party, or, perhaps, the day before, the deceased,
John Willis Williams, had sold some cotton and received a considerable sum of money therefor, which the 
evidence tends to show, if it does not directly show, he carried with him in his pocket, and had it at the 
party that night. He bought some small, cheap article at the party, pulled out the money, and handed a $20 
bill, which was to be changed, and out of which he was to pay for the article and get back the balance. 
This was done openly and publicly; and, while there is no direct testimony that the appellant saw and knew
this at the time, from the evidence it can be gathered that he had the opportunity to see, and, perhaps, 
did see, this at the time.

The night seems to have been somewhat cool, if not cold. The negroes had a large fire out in the yard, near
the house. The house was a small one, could not contain all of the crowd; and, while it is shown that there
were a large number in the house, it is also shown that there were a considerable number outside of the 
house at this fire. Among them was appellant's wife and another negro woman. It seems that shortly before 
this money changing deceased, somewhat, if not considerably, under the influence of liquor, sat down in the
lap of this other negro woman and partly in that of appellant's wife, and placed his hand apparently 
familiarly on her shoulder. It also seems that this fact was called to the attention of appellant by his 
wife or some one else. Deceased then went into the house, when, it seems, this money transaction occurred.
Appellant appeared about the door of the house at this time with his face towards it, looking into the 
house.

From the state's witnesses it is clearly shown that deceased then started out of the house, announcing that
he was going home, and appellant then said to him: "No; you can't get out of here." Deceased replied, "What
have I done to you?" Appellant said: "You heard what I said; if you do, I will kill you." That deceased then
started out at the door, and appellant struck him in the face on the forehead with a bottle, cutting his 
head, from which the blood streamed down. From the state's witnesses, which were numerous on this point, it
appears that this assault and battery by appellant on deceased on this occasion was without any provocation
or justification whatever. The defendant's theory and his testimony, in substance, was that at the time the 
deceased started out the door he (the appellant) was talking to one Barnes and appellant's wife, and as 
deceased started out the door appellant told him he wanted to see him, and that he would let him out the
door as soon as he got through talking to these persons; that deceased refused to wait, walked back to the
counter in the house, pulled off his hat, got a knife, and came at appellant, and he thereupon hit him with
a bottle.

Immediately after this deceased somewhat hurriedly left and rapidly went to his home some few miles distant;
that not a great while after this the appellant and his wife also left the party, going towards their home.
The night was dark. Both the deceased and appellant had to travel the same road home, and appellant had to 
pass near by deceased's house; his house being beyond that of deceased. When deceased left the party, he did
go to his home. His wife was at his home; she not having been to the party, but was in bed and had been 
asleep.

The theory of the state, it seems, was that appellant, when he got within a short distance of deceased's 
house, prepared himself with good-sized rocks, sent his wife to deceased's house to induce him to come out
and come down the road some distance, so that appellant, and, perhaps, his wife returning, could waylay, 
and did waylay and assault and kill, him, for the purpose of robbing him. The state had testimony on this 
point to the effect that appellant's wife did go to the house of the deceased, call him out, and after some 
hesitancy he followed after her down the road some 100 or 120 yards from his house, where the killing 
occurred. When deceased left his house on this occasion, he took a double-barrel shotgun with him. Deceased
was killed, either by strokes from the appellant with the barrel of deceased's own gun, or with rocks with
which he had armed himself—one or the other, or both. Appellant's claim on this point was, in effect, that
he did not send his wife after deceased and have her and him come down to where he was lying in wait, but
that deceased was out with his gun hunting for him (appellant), and that when they met in the road deceased,
after getting very close to him and his wife, hailed them and attempted to shoot him with this gun, and that
he seized it, wrenched it out of the deceased's hands, and struck him over the head therewith. It does 
appear that appellant had some good-sized rocks with him, which he is shown to have picked up some 
considerable distance before reaching the point where the killing occurred, which rocks were found

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at the place of the killing. The stock of deceased's gun was also found down in a field near by, behind or 
at a log; and it seems that appellant himself took it there, but that he took the barrel on with him and 
delivered it to persons, ultimately reaching the sheriff, and was identified and introduced on the trial of 
the case. After thus striking the deceased on the head and crushing his skull, appellant claims that he was
not dead, and, in order to prevent persons passing along from running over him, he dragged his body out of
the road into this field, with his head at the fence and his feet extending into the field therefrom. It was
also shown that there was blood in the pockets of the deceased's pants in such way as to show that it was
made from a bloody hand inserted therein, and there was no money found on the person of the deceased when he
was first searched therefor by parties reaching him after the killing. Appellant denied getting any of his
money. The state showed that after the killing none of his money was ever returned to his wife, and that 
she never received any of it. Appellant, in his testimony, and apparently from his theory of the case,
claimed that the killing was done by him in self-defense, and did not claim that it was because of the 
insult, or claimed insult, to appellant's wife at the party.

By one of appellant's bills it is shown that the state's witness Ledbetter testified, over his objections, 
to the effect that on Sunday morning after the killing he went down to the place where deceased was killed, 
and saw tracks of two persons around a certain post oak bush on the west side of the road 6 or 7 steps from
the body of the deceased, near the pasture fence on the west side of the lane; that he also saw tracks up 
and down the fence on that side of the lane, and saw tracks of a person inside of the field on the east side
of the lane opposite the body of deceased, which led from the fence down into the cotton field 20 or 30 
steps from the body, and the person making these tracks kneeled down in the field, and then he saw knee 
prints and toe prints made by such person 20 or 30 steps from the body. Another bill, in substantially the 
same way, shows that the state was permitted to prove by Chavers that the next morning after the killing he
found in the pasture on the west side of the lane opposite the body, some 6 or 7 steps from the place of the
killing, a piece of an old singletree leaning against a small post oak bush. This is, in substance, the 
whole of these bills, except the objections made to the introduction of this testimony. It also appears that
later the appellant moved to exclude this testimony for substantially the same reasons for which he had 
objected thereto.

The substance of appellant's objections to all this testimony was that the said tracks were not shown to
bear any resemblance to appellant's, and that such evidence was immaterial, and because many other persons 
had been at and around the body on the night before, and that said evidence was calculated to and did 
prejudice the jury against the defendant by attempting to show that he could have made said tracks while 
lying in wait for deceased, and that there was no connection shown between the singletree and the killing,
or with the defendant, and that appellant was not shown to have ever had or used said singletree, or that 
it had been used by any one in the said difficulty, and that it was immaterial and prejudicial. It will be 
seen by this that all these objections were mere objections, and not approved by the court as a statement 
of the facts, and cannot be so considered by this court in that particular. The bill in no way so states 
the facts surrounding the matter as to show error, so that this court cannot consider the bills. Conger v.
State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and authorities there cited. However, the court admitted this 
testimony on the theory that the evidence tended to show that appellant waylaid the deceased at this point,
and that the objections to this testimony went to the weight of it, and not to the admissibility, and that 
the jury could consider it on said theory of the case. In our opinion, the bill does not show that the 
admission of this evidence was reversible error. Besides, as the appellant was acquitted of both murder in 
the first and second degrees and found guilty of manslaughter only, we think, even if inadmissible, it could
not and would not injuriously affect him.

There is another bill by appellant complaining of the court asking a certain witness questions about the 
distance from where deceased was killed to his house and to other houses; the court claiming, on objections
by appellant, that the witness' testimony was not understood, and he asked the questions in order that it
might be understood. The witness himself, next morning, came back, and at his own solicitation was permitted
to take the stand to correct his testimony of the day before about the distance, showing that he had that 
morning gone and stepped the distance, and then gave it accurately. This bill shows no reversible error.

Appellant requested a special charge to the effect that the evidence that deceased had money before going to
the party and none the next morning, when his body was searched by the sheriff, was not evidence to prove 
defendant guilty of killing the deceased, but was introduced solely for the purpose of showing motive on the 
part of the defendant, and that if they believed from the evidence, at the time of the killing, that 
deceased was proved not to have had any money, then that they could only consider such evidence to show 
motive for the killing, and


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also complaining of the failure of the charge of the court to so instruct the jury.

It is not proper for the court to single out any particular evidence and charge on that specifically in such
matters, and especially so on the question of motive; and the court did not err in refusing appellant's 
charge on that subject and omitting to charge at all on that subject, as claimed by appellant. There was no 
question in the case whatever that appellant killed the deceased. All the testimony so showed, and he 
himself so testified, as stated above. He was acquitted of murder in the first and second degrees and
convicted only of manslaughter; and hence, even if it had been proper to so charge, as claimed by appellant,
it would not, under the circumstances, be reversible error not to do so.

By one ground of appellant's motion he complains that the court erroneously refused to grant a new trial 
because of newly discovered evidence. The claimed newly discovered evidence is that after the trial he found
out that there were powder burns on the dress of his wife, near her left shoulder, when she arrived at 
Fairfield the next morning after the killing the night before. This could not be newly discovered evidence,
because, if such was a fact, he and his wife both were bound to have known it; and even if this were not 
true no diligence whatever is shown, or attempted to be shown, why it was not discovered until after the 
trial of the case.

The evidence was amply sufficient to sustain a higher grade of homicide and a much severer penalty than was
inflicted. Doubtless, by the skillful management of appellant's case by his able attorneys, the jury 
acquitted him of all higher grades of the offense charged and merely found him guilty of manslaughter
because of the claimed insulting conduct of deceased towards appellant's wife at the party.

No reversible error being shown, the judgment will be affirmed.