Appellant is condemned to suffer death for the offense of murder.
He shot and killed Isidor Matejek, who was the keeper of a cold drinks establishment. Several eye-witnesses were called by the State. The deceased was a white man. There were several negroes and some white men in the deceased's place of business. The appellant and a companion entered and called for two bottles of soda water. After drinking them, appellant handed the deceased a piece of money and received some change, but claimed that it was not enough. A quarrel between the appellant and the deceased ensued. Appellant was ordered to leave the building. Failing to respond, the deceased got a stick about three feet long and which had the appearance of a broom handle. Appellant and his companion ran to the back door, where they had a conversation, after which the appellant returned, and in a loud voice and arrogant manner demanded his change. He was again ordered to leave, but replied that "he was not in a hurry to come in and would not be in a hurry to leave;" that the deceased was misled about hitting the appellant with a stick; "that he would not hit him with a stick." The stick in question was under the arm of the deceased at the time. *Page 271 He took the stick in his hand and swung it at the appellant who fired his pistol twice killing the deceased. One of the State's witnesses was uncertain whether the deceased struck the appellant with the stick or not. Another witness for the State testified that the companion of the appellant advised him not to re-enter the place after he was ordered out. Appellant, however, re-entered and said that "he had come for his change and that he was going to have it." The deceased then put some money on the counter and said: "Here is your change. Take it and get out of here and stay out." Appellant replied: "I was not in any hurry about coming in, and I will not be in any hurry about going out." The order to get out was repeated several times by the deceased, and he finally struck the appellant with the stick. They were on opposite sides of the counter, and the appellant immediately fired.
According to the appellant, who testified as a witness in his own behalf, he had gotten a pint of whiskey from the deceased some hours before the homicide. Upon going to his home, he took several drinks of the whiskey. Hearing a noise on his premises, he got his pistol, went into the yard, and fired at a bottle on the fence. Having occasion to go on an errand, he got in his automobile, taking the pistol with him. Upon his return he stopped his car and together with the witness Clay entered the place of business of the deceased and bought some soda water. After drinking the soda water, he handed the deceased a dollar and asked for the change. The deceased said there was no change coming and ordered the appellant to leave, making a threatening gesture with the stick at the time. He and Clay ran out. Upon reaching the door, appellant told Clay that he was going to return and ask for his change; that he was entitled to it and knew that the deceased would give it to him. When he returned and asked for the change, the deceased put thirty-five cents in nickels upon the counter, and when the appellant reached for it, he was struck by the deceased with a stick which he had in his hand; that he was first struck upon the wrist and then upon the head. After he was struck the third time, he shot the deceased. Appellant claimed that the blows received wounded him and caused flood to flow. He also introduced some corroborative testimony to the effect that he had wounds upon him. One witness testified that after the homicide, appellant's wrist was swollen and appeared to have been bruised. This, however, was controverted by the State. There were two bottles in the appellant's automobile. One was full of whiskey, the other empty.
The court instructed the jury on the law of murder and manslaughter, including a specific charge on the phase of manslaughter which renders a blow causing pain or bloodshed adequate cause. He also charged on the law of self-defense and provoking the difficulty. *Page 272
The issues raised by the evidence seem to have been clearly and adequately presented to the jury. There are no complaints of the rulings of the court upon the admission of evidence preserved by bills of exception.
The evidence in the case is not such as would ordinarily lead one to expect a verdict assessing the death penalty. Possibly the fact that the appellant was a negro and the deceased a white man may have had some bearing. However, in the absence of some tangible matter revealed by the record which would convey to this court information which would justify the conclusion that the verdict was affected by passion or prejudice, it would not be warranted in interfering with the verdict which has the sanction of the learned trial judge in whose presence the evidence upon which the verdict was based was given and who, in the light of the evidence, overruled the motion for new trial. We have failed to perceive any matter in the record of legal significance which would lead us to the conclusion that the trial accorded the appellant was other than a fair one by an impartial jury. The evidence warrants the conclusion which appears to have been formed by the jury that the blows which the appellant received after his return were provoked by him, that after he had been given the change which he claimed was due him, his manner and his words were such as to provoke the deceased to make an attack; that they were so intended and made with the purpose of killing the deceased in the event he responded by striking the appellant with the stick.
The judgment is affirmed.
Affirmed.