95 S.W. 538


WILLIAMS
v.
STATE.


Court of Criminal Appeals of Texas.


May 2, 1906.

        Appeal from District Court, Freestone County; L. B. Cobb, Judge.

        Ike Williams was convicted of murder in the second degree, and he appeals. 
Affirmed.

        J. E. Yantis, Asst. Atty. Gen., for the State.

        DAVIDSON, P. J.

        The conviction was for murder in the second degree, with five years in the 
penitentiary fixed as the punishment. There are two contentions: First, that the evidence 
is not sufficient to support the conviction; and, second, that the court should have charged 
the law of manslaughter.

        Upon the theory of the defensive testimony, appellant should have been acquitted; 
but the jury saw proper to believe the evidence for the state, and this fully supports the 
judgment. We do not believe the issue of manslaughter was raised. Appellant had been 
keeping a woman as his mistress. For some days previous to the homicide appellant had 
been out of town, working on the railroad. He returned about midnight. The woman in 
question had been accompanied home from a dance by deceased, and was in her room. 
They were undressed, and had retired, when appellant came to the door and demanded 
admittance. The woman told him to wait until she could put on her clothing. Appellant 
broke the door down, entered the room, passed the woman, and went to deceased. The 
woman immediately left and informed a deputy sheriff of the situation. The dead body of 
deceased was found about 25 steps from the room mentioned in a partially dressed 
condition. There were two serious stabs on the body, one about the heart and the other a 
short distance below. He was lying on his face with his pistol tightly grasped in his hand. 
Under his body was a pool of blood. His left arm was in the left sleeve of his coat, and his 
shoes were in his hip pocket. One barrel of his pistol had been recently discharged. This 
is practically the state's case. However, there was some evidence of a pistol shot in the 
room where the parties met. Under this state of facts the issue of manslaughter was not 
suggested. Appellant testified in his own behalf, to the effect that when he entered the 
house he was not aware of the presence of deceased, and as he approached the woman, 
with the view of embracing her, he felt some one touch or grab him; that he felt the pistol 
in the hands of his unknown adversary, the scuffle ensued, deceased fired a pistol, and 
appellant succeeded in getting out his knife and stabbing or cutting his antagonist; that 
after the second or third cut the hold of his adversary was loosened or weakened, and 
they left the house, appellant in front. Under this view of the testimony the issue of 
manslaughter was not raised, but it was a case of self-defense. We do not believe from 
any view of this testimony the issue of manslaughter was in the case.

        Finding no error in the record, the judgment is affirmed.