Page 519


69 S.W. 519


NEWMAN et al.
v.
STATE.


Court of Criminal Appeals of Texas.


June 24, 1902.

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

W. B. Newman and Jim Hagler were convicted of manslaughter, and appeal. 
Reversed.

W. B. Moses, Gibson & Callaway, and Simkins & Mays, for appellant. Robt. A. 
John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The trial resulted in the acquittal of Jack Newman and conviction of W. B. 
Newman and Hagler for manslaughter. This difficulty seems to have grown out of 
the relations between W. B. Newman and deceased, Ed Hardwick, brought about by 
a rivalry for the affections of Mrs. White. W. B. Newman was engaged to marry
Mrs. White. The record shows this strained relation had existed for some time 
prior to the tragedy, and threats were proved by each against the other. On the
evening before the homicide there was a party at Hardwick's, and W. B. Newman 
had an engagement with Mrs. White to escort her to the party, which was 
interfered with and broken off by deceased and his brother, and an engagement 
made between deceased and Mrs. White, by which Newman was set aside, and 
deceased escorted Mrs. White to the party. Threats were shown by W. B. Newman
and Hagler with reference to deceased on account of this matter. These were 
denied by Newman and Hagler. There was considerable testimony pro and con in 
relation to this matter. The state proved by witness Green Hardwick, brother of
deceased, that deceased, who went with Mrs. White to the party above mentioned
the night preceding the shooting, desired to escort another lady, who either 
would not or could not go with him, wherefore deceased late in the evening 
before the party that night offered the use of his buggy and horse to Jim
Hardwick, stating that he would not attend the party; that Jim Hardwick then
suggested that deceased take the "widow" (meaning Mrs. White), and deceased
agreed to do so if witness could make the engagement for him, deceased not
having the time to make the engagement himself. Witness did make the engagement.
Exception was reserved to this evidence mainly because it tended to place 
deceased in the attitude of being an innocent party in the matter. The 
objection was overruled, and the testimony introduced. Defendant then offered 
to prove by Will Hamill that, at a party at the residence of defendant Hagler
about ten days or two weeks prior to the party before mentioned, he heard 
deceased talking to Mrs. White with reference to defendant W. B. Newman, and 
heard him tell Mrs. White that Newman was very filthy and indecent, and that 
on the way to the party that night defendant Newman spat all over the buggy 
lines and horse, and was most disgustingly filthy in his habits. This was 
offered to show that deceased's conduct was such as to warrant defendant Newman
in seeking an explanation of deceased of his language and conduct, as it was 
through the slanderous statements of deceased to Mrs. White, who was affianced
to defendant W. B. Newman, that the engagement was broken between them. In this
connection it was further shown that, with reference to the engagement between
Newman and Mrs. White and deceased and Mrs. White to attend the party the night
preceding the difficulty, deceased and Newman met on their way to the residence
of Mrs. White, and a conversation occurred between them in regard to their 
relations to Mrs. White, and their respective engagements with her for the 
evening. It was further shown in this connection that Newman proposed that as
they both had engagements with her, and there was some complication about the
matter, both break the engagements and leave Mrs. White without an engagement. 
This, deceased declined, whereupon both of the parties resorted to the 
residence of the brother-in-law of Mrs. White, where she resided, and appealed 
to the brother-in-law to settle the matter with Mrs. White between deceased and
Newman. Mrs. White stated she would

Page 520

have nothing more to do with Newman, breaking the engagement with him, and 
accompanied deceased. It is further shown by the testimony that her engagement
to marry Newman was broken by her on account of the statements of deceased to 
her with reference to W. B. Newman. We are of opinion, under this peculiar
state of the record, that the court should not have admitted the testimony of 
Green Hardwick, excepted to; and, having admitted it, the testimony offered
through the witness Hamill by defendant should have been received. While the
bill is deficient in failing to state that these facts were known to appellant,
we mention the matter so it may not arise upon another trial.

There are some exceptions reserved to the charge, and the failure of the court
to charge on certain phases of the testimony. As before stated, there had been
ill will between the parties, and threats had been proved pro and con by one 
against the other. These had been strenuously denied by defendants. The theory 
of the state was that Hagler and W. B. Newman had threatened the night before
to kill deceased, and that it was in pursuance of these threats that the 
killing occurred the next day, and the meeting at the place of the tragedy 
afforded W. B. Newman the excuse to bring on the difficulty which resulted in 
the killing of deceased. The facts in this connection further show that a 
bridge was being built across the creek on the premises of W. B. Newman; that
it was not a public road, as contemplated by the statute, but an accommodation 
or neighborhood road, and appellant Newman had loaned his teams for the purpose 
of assisting in the construction of the bridge; that W. B. Newman and Hagler 
and quite a lot of others were at the bridge, engaged in and about the 
construction of it, when the three Hardwick brothers (deceased being one of 
them) approached; that deceased came in a buggy, and the oth-others on 
horseback. Deceased hitched his horse, and was approaching the bridge where 
Newman and Hagler and the others were. W. B. Newman got up from where he was 
sitting, near the bridge, and went out, meeting deceased, for the purpose, as 
he stated, of having an explanation from him in regard to Mrs. White, and the 
reports and statements he had made to her. As deceased and defendant Newman
met, defendant Newman said, "Good morning, young man. How do you feel this
morning?" Deceased straightened up, pushed his hat on the back of his head in
a defiant manner, and replied, "I feel all right, by God!" Appellant Newman
testified in this connection to the effect: "I saw then he was mad, and I
retorted, `Ed, you acted a rascal with me last night;' and he said, `No, by 
God! not half as bad as you did;' and as he said this he went after his gun.
When he got his gun about halfway out, I then saw what was up, and said, `If 
that is your game, go at it.'" The parties were then about 10 feet apart. 
Appellant states that deceased shot first and missed, but hit appellant 
Newman's horse, which had been ridden there by his little son. Appellant then
fired immediately, striking deceased in the head, which staggered him back. 
Deceased then retreated four or five steps, turned and fired two or three 
shots, and then ran off into a dugout. Newman did not fire at deceased while 
he was retreating the first time, and did not fire at him again until he 
stopped and commenced shooting the second time. At this juncture Newman says he
heard his son Jack say: "Look out papa,— you and Jim! There comes Green with a
shotgun,"—alluding to Green Hardwick. "Green Hardwick came down within about
fifteen steps of us, and shot at us twice. I then shot at him, and he ran back
towards the house. Green Hardwick wounded my little son, Eldridge, and also
Jim Hagler. When I found my child was shot, I went to him, and did not shoot 
again. I do not know how many shots Jim Hagler and my son Jack shot. I was 
firing a 38-caliber pistol, with short cartridges. Jim Hagler and Jack Newman 
were shooting 41-caliber pistols." The testimony shows that deceased was 
killed with a 41-caliber ball. There is other testimony in the record to the
effect that, when deceased retreated after the first firing, he turned and 
began shooting at Jim Hagler; that up to this time Jim Hagler had been taking 
no part in the difficulty, but when deceased began firing at him he returned 
the fire. The testimony further shows that Jack Newman, who was acquitted, 
fired some shots at Green Hardwick, who had been firing with a shotgun. This 
raises two issues, which, in our judgment, should have been clearly submitted 
to the jury, so far as the testimony relates to Jim Hagler. If there had been
an agreement between Hagler and W. B. Newman to provoke a difficulty with 
deceased when they should meet him, and that with the purpose and intent of 
killing him, they would have been guilty of murder; but this was settled 
adversely to the state by the verdict of the jury, because they were convicted
only of manslaughter. If they had an agreement to provoke a difficulty with 
deceased for the purpose of inflicting chastisement short of serious bodily 
harm or death, then, if the killing occurred in self-defense, under this theory
they would be guilty of manslaughter. If Hagler, although he may have agreed 
with Newman to assist him in chastising deceased for his previous conduct, 
abandoned the agreement, and did not engage in it until deceased began firing 
upon him, he would be entitled to an acquittal on the ground of self-defense. 
Or if, as contended by him, there was no agreement between him and Newman to 
do deceased any injury, and deceased began firing upon him, he would be 
entitled to an acquittal on the ground of self-defense from that theory of the
evidence. These issues were not submitted to the jury.

Page 521

There is another theory under the testimony which should have been submitted 
to the jury with reference to the defendant Newman. He had the unquestioned 
right to call upon deceased for an explanation of his conduct, under Shannon's 
Case, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17. The doctrine is 
there laid down, and has been subsequently approved by the decisions of this 
court, that: "A party may speak in a quiet and peaceable manner to another 
about derogatory statements made and circulated by such other person against 
him, without intending or even desiring to provoke a difficulty; and, knowing 
or believing such other person is armed, he may also arm himself, where his 
intention is not to provoke a difficulty or produce an occasion for injuring 
the other, but to protect himself, if necessary, in self-defense. And if, 
under such circumstances, his adversary not only persists in his insulting and
derogatory charges, but makes a violent assault upon him, in which he kills 
his assailant, he cannot be held guilty of any crime." If W. B. Newman 
approached deceased for the purpose of having a peaceable talk with him, and
an explanation of the insulting and derogatory remarks made to Mrs. White 
about him, and which led to the breaking of their engagement, and deceased 
forced the issue to mortal combat by his insulting conduct and use of his 
pistol, then Newman would have the right to defend himself; and under such 
circumstances the killing would be justifiable and in self-defense. These 
matters were not presented by the charge of the court, but they should have 
been clearly and unequivocally charged. The court's charge throughout 
emphasized rather strongly the question of provoking the difficulty by Newman
and Hagler.

There are some questions in the motion for new trial that would also require a
reversal, —mainly newly discovered testimony. But as these witnesses will 
likely be present upon another trial, we will not discuss the matter.

For the errors discussed, the judgment is reversed and the cause remanded.