Clay v. State (44 Tex. Crim. 129, 1902)

DAVIDSON, Presiding Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-one years.

In the city of Tyler, in one of its must public places, where, by reason of a barber shop, saloon, drugstore and soda fountain, large numbers of people were in the habit of congregating, this killing occurred about 6 o’clock in the evening. Deceased, Griffin, was an employe of Mayer & Schmidt, merchants, being their collector and assistant bookkeeper. About half an hour previous to the homicide deceased approached appellant at about the point where the killing subsequently occurred, and presented for collection a bill for $47. Appellant was entitled to a credit on this account of $4. Deceased had credited it on the books at the store, but had failed to place it on the account. Just what occurred between the parties in regard to this matter is in doubt. The parties were standing close 'together, and Griffin, with his collection book in his hand, was shaking it at Clay, indicating that he was angry. One or two witnesses testify to a vulgar expression by defendant, insulting in its character, to Griffin. Deceased replied, “Yes, I will;” and appellant then slapped Griffin on the left side of his head or face with his right hand, knocking him over on the sidewalk. He then got on or hold of him, and either rubbed his head on the pavement or bumped it a time or two against it. Some of the witnesses say this produced an abasion; some a blue-loolcing appearance on his forehead, while others state it brought blood. Assuming an erect position, deceased remarked, “Gentlemen, you see the effect of presenting this man a bill.” Dr. Wynne testified, that Griffin and Clay passed a few words about the time Griffin got up. Some one handed him his hat, and he said to Clay, “I will come and see you again,” and Clay said, “All right, bring anybody else you want to from the house.” Another testified, that Griffin said, “I will go and come back and see you.” And Clay said, “Bring anyone else you want to see me.” Griffin said, “I don’t need anyone else with me; I am enough myself.” Clay said, “All right, I will be here waiting for you,” or words to that effect. Parker testified, that when deceased was brusing the dirt from his hat, he pointed his finger at Clay and said, “It is not over,” and Clay said, “That is all right; I will be ready.” Griffin then left. Upon cross-examination he was not so positive about the latter expression; that is, that Clay said he would be ready, but that was his impression; but he knew he said “All right.” Partin testified, that Griffin, after he got up, said to Clay, “I will see you later,” but did not hear Clay make any remark. White testified, that he heard Griffin say, “I will see you again,” but did not hear Clay say anything in reply. There is considerable confusion in the testimony as to what was said by the parties immediately after Griffin resumed his feet. It is conceded that deceased said, “It was not all over;” that he “would see Clay again,” and defendant, in effect, told him “it was all right.” In effect, the conclusion reached from the testimony may be summed up by stating that deceased notified him he would see him again about the trouble just ended, and defendant left it optional with deceased. After making these remarks, deceased went west to the mercantile establishment of Mayer & Schmidt, about 185 feet distant. Knight testified, that after deceased left, and while at or near the spot where the difficulty occurred, appellant stated, that he was sorry he had hit that boy, but he had as good as called him a liar, and he ought to have known at the time that if he did that he would not take it. Appellant also stated, “I called him a boy, but he is a man.” Clay would weigh from 200 to 225 pounds; deceased from 115 to 135 pounds—a wiry, active young man, inferior in strength to appellant. Within about ten minutes after deceased left the scene of the first trouble, appellant, in company with Schuh, went east, or in the opposite direction from that taken by deceased, about 650 feet, to the National Saloon, took a drink, and returned to the place where the original difficulty occurred and where the tragedy was enacted. After reaching this point, 'appellant went into what is called the Euby Saloon, called over the phone the workman who was building his house, and talked with him about some matters connected with the house; and then returned to the sidewalk. He went to the edge of it, and turned facing the building, with one foot in the gutter and the other on the edge of the sidewalk, leaning against or standing by an awning post, shown to be about six inches square, talking to .Bailey. There was a considerable crowd on the sidewalk, when deceased was seen approaching from the west. It seemed the crowd expected a difficulty. Deceased seemed to be looking for somebody, and when he discovered appellant, turned facing him and began drawing his pistol. There is evidence that Some one in the crowd hallooed to appellant,