Court of Criminal Appeals of Texas, 1894

Gilcrease v. State

Court of Criminal Appeals of Texas · Decided November 28, 1894 · Huet

28 S.W. 531; 33 Tex. Crim. 619; 1894 Tex. Crim. App. LEXIS 181 (South Western Reporter)

Counsel

Kearby Muse, for appellant. — 1. The court erred in overruling defendant's application for continuance, and in refusing the motion for new trial on account thereof, in that the testimony of the absent witness was material, true, and would probably have effected a more favorable verdict in behalf of the defendant. The testimony of the absent witness Pike in relation to the communication to the defendant of the threats of the deceased was not supplied from any other source, and the testimony of said witness in regard to the facts alleged could not be proven from any other source. Willson's Crim. Stats., secs. 2169, 2186, and authorities cited. The absent testimony in relation to threats was material, as tending to show the deceased to have been the aggressor in the difficulty resulting in the homicide, and as tending to show malice and a conspiracy between the deceased and Pleas Holman to provoke the difficulty and kill the defendant. The testimony of the absent witness A. Veon, in relation to the gun hidden between the mattresses, was corroborative of the testimony of the defendant's wife, Charley Young, and Andy Clarke in relation to the deceased's being armed when killed, and tended strongly to establish the truth of that fact. 2. The testimony of Pleas Holman as to threats of defendant communicated to him by his mother, and the reasons and motives which prompted him to arm himself and seek defendant, was hearsay and incompetent, and is a trial of defendant from the standpoint of the witness. Willson's Crim. Stats., sec. 2494; Segura v. The State, 16 Texas Crim. App., 231; Cochran v. The State, 28 Texas Crim. App., 422; Bell v. The State, 20 Texas Crim. App., 445. The court erroneously charged the jury upon the law of manslaughter, in that said issue, together with self-defense, was predicated upon the theory that the defendant produced the occasion of the homicide by an original wrongful act, and restrained and limited said issues upon the finding of the intention or the defendant, without reference to any overt act; and erroneously submitted the issues of provoking the difficulty by the defendant, and imperfect self-defense, without evidence therefor; and limited sudden passion to the acts of the deceased, without reference to the acts of Pleas Holman; and failed to submit the issue of manslaughter upon the theory raised by the evidence, of a deadly assault by Pleas Holman, and the killing of deceased in sudden passion under circumstances not sufficient to justify, induced by his co-operation, or apparent co-operation, in said assault; and said charges were wholly without specification as to the character of such wrongful act of the defendant referred to, or of any wrongful act, and failed to make any affirmative application of the law thereto; and were upon the weight of the testimony. The law of imperfect self-defense was not applicable to the case, nor legitimately raised by the evidence. The charge does not submit to the jury any issue of fact or transaction for their determination as to whether the defendant was in the wrong therein, nor what act or any act was calculated to produce the occasion or provoke the difficulty; and under said charge any act which was calculated to produce or provoke the difficulty, no matter how legal or rightful, destroyed the right of self-defense. The charges thereon erroneously circumscribed said issue and virtually eliminated it from the case; charged upon aggression by the defendant, not warranted by the evidence; submitted the issue of such wrongful aggression by the defendant, with less than felonious intent; and by the erroneous charge in reference to the legal presumption against the defendant from the use of a deadly weapon, and to which exception was reserved, as shown by exception number 1, construed with the erroneous charges upon the law of manslaughter, said issue was eliminated from the case. The court erroneously failed to submit the issue of manslaughter upon the theory raised by the evidence: that if Pleas Holman was the aggressor and shot defendant, and from the acts and conduct of W.W. Holman defendant believed his life in danger, and, actuated by sudden passion, shot with the intent and purpose to protect his life or his person, and the circumstances were not sufficient to justify such belief on the part of the defendant, then his right of self-defense was imperfect, and his offense no greater than manslaughter. The court erroneously charged upon provoking the difficulty and producing the necessity for the homicide by the defendant, and upon the issue of imperfect self-defense, in that the same was unwarranted by the evidence. The record shows a deadly assault by the Holmans, occasioned by the defendant's wiring up a gate in the exercise of his legal right so to do, without knowledge of the presence of the Holmans; the wounding of the defendant by Pleas Holman, the killing of the deceased, while aiding or apparently aiding in such deadly assault. Said issues in the charge were not legitimately raised by the evidence. Willson's Crim. Stats., 981, 1030; Meuly v. The State, 26 Texas Crim. App., 274, 302, 305-308; Howard v. The State, 23 Texas Crim. App., 265, 278-280; Hobbs v. The State, 16 Texas Crim. App., 517, 522, 523; Ball v. The State, 29 Texas Crim. App., 107, 125, 126. 3. The court therein erroneously instructed the jury, in effect, without warrant of evidence therefor, that if defendant sought the deceased with the intention, unheralded by any act, of bringing on a difficulty without intention to kill or do serious injury, and the deceased, seeing it, made a violent assault, and the defendant resisted and killed deceased to save his own life, the offense would be manslaughter; and murder if the intention in seeking was to kill, although the intention was unheralded by any act. And under the charge, intention without reference to acts was made the test of crime; and self-defense forfeited upon intention alone. Ball v. The State, 29 Texas Crim. App., 107, 125, 126. 4. The court erroneously, in said charge and elsewhere, failed to submit the issue of manslaughter upon the phase of the case presented by the evidence of the deadly assault by Pleas Holman and wounding of the defendant, the killing of the deceased under sudden passion engendered by such assault while aiding or apparently aiding therein, under circumstances insufficient to justify the belief of danger from him. And erroneously failed to apply the law relating to the acting or apparent acting together of the deceased and Pleas Holman in such deadly assault. Howard v. The State, 23 Texas Crim. App., 265, 305-308; Cartwright v. The State, 16 Texas Crim. App., 473, 487,488; McLaughlin v. The State, 10 Texas Crim. App., 340, 359, 360; Jones v. The State, 20 Texas Crim. App., 665, 670-672. 5. And the Court therein and elsewhere failed to instruct the jury that the Holmans were not justified in attacking the defendant by reason of the wiring up of the gateway, irrespective of whether that act was lawful or unlawful. And the court failed to instruct the jury that if the wiring up of the gate was unlawful, that the Holmans were justified in using only so much force as was necessary to procure a desistance therefrom; and if in so doing they or either of them made or were apparently about to unlawfully make an assault upon the defendant with deadly weapon or weapons, and the homicide resulted under such facts, as to the issue of manslaughter and self-defense arising therefrom. The court erroneously failed to present this phase of the case to the jury. 6. The charge of the court embraced in the third and fourth exceptions erroneously confined sudden passion to the provocation given by the deceased, in that Pleas Holman was the aggressor, if such aggression was without intent to kill, in that the same was unwarranted by the evidence, and a restriction upon the law of self-defense. And erroneously instructed, in the consideration of the sufficiency of the provocation, etc., to weigh the past conduct of the deceased and those connected with him in the matter toward the defendant, his threats and bearings, without specification as to what matter was referred to, and without evidence of threat by the defendant. [The other portions of the able brief of counsel are devoted to isues not discussed in the opinion, and are therefore omitted. — REPORTER.] R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

HUET, Presiding Judge.

The defendant was charged by indictment with the murder of W. W. Holman. Trial by jury resulted in conviction for murder in the second degree, with the penalty assessed at six years in the penitentiary. Judgment and sentence accordingly, from which defendant prosecutes this appeal.

An application to continue for the want of testimony of the witnesses to prove threats made by the deceased to kill defendant, which were communicated to him; also, to prove that deceased, as well as his brother, had guns at the place and time of the shooting. The theory of the State was that appellant, unprovoked, killed the deceased; that of the defendant was self-defense. Both theories were supported by testimony; hence a conflict in the testimony as to who was the aggressor— who began the violence. Threats, whether communicated or not, in such a conflict, are of very great importance, as they tend to solve the *630 problem at issue. The State’s witnesses deny that the deceased was armed with a gun at the time he was shot. If this be true, appellant was in no actual danger when he shot deceased, nor was the danger apparent, when all the circumstances are considered, and self-defense was not in the case. The application should have been granted, although it was the second application; and, after the trial, the court, viewing the facts of the case as developed on the trial, should have granted a new trial to have enabled the appellant to obtain the testimony, though it was somewhat cumulative.

By a careful inspection of the record, it is evident that Mrs. Holman was simply a tenant at will; that she had no right to, or control of, the fences surrounding the farm. When, by permission of appellant, she went into the cabin, there was no gate at the place where a gate was subsequently placed, and appellant had the right to place a gate there, and close it, without infringing upon any of the rights of Mrs. Holman. Nothwithstanding this, the court in its charge repeatedly instructed the jury in regard to appellant’s provoking the difficulty, or producing the occasion, which led to the killing of deceased; limiting his right of self-defense by these charges, and in one part thereof calling the attention of the jury specially to his nailing up the fence as the act or means by which the difficulty may have been provoked. To all of these charges appellant excepted at the time, reserving his bills of exception. There is not the slightest circumstance in this record demanding a charge upon the doctrine of provoking the difficulty or producing the occasion which led to the homicide. Startling and alarming, indeed, is the proposition that the citizen will be deprived of the right to protect his life for doing, in a lawful manner, that which he had a legal right to do.

The charge upon manslaughter is upon a state of facts not presented by the record, and it fails to apply the law of manslaughter to the facts presented by the record. Appellant did not contend for manslaughter because of insulting words or gestures, or a battery so slight as to show no intention to inflict pain, or an injury to property unaccompanied by violence. His contention was: first, self-defense; second, if not self-defense, that he was shot by the brother of deceased, the deceased being present, armed; and that he believed that his life was in danger from him, and was in terror. If the belief was not reasonable, then the killing under such circumstances would have been manslaughter. Another view upon this subject: Appellant was engaged in a lawful business — nailing up his fence. Two men armed with guns approached in a threatening manner, ordering him to desist from doing that which he had a right to do. Now, if a degree of anger and rage was created in his mind by these facts and attending circumstances, and he shot deceased when it was not reasonable to believe that his life was in danger, then the killing would have been manslaughter.

*631 Bill of exceptions in regard to tbe admission of certain evidence. The reasons which prompted Pleas Holman to go armed to appellant, while at the gate, are not admissible unless they were known to the appellant. They were not known. Mrs. Holman does not swear that appellant ever threatened the deceased or his brother. In fact, under the facts in this case, it is preposterous to assume that he had made such threats, for he did not know that deceased and his brother were in the country, and had no reason for believing that they would be at their mother’s at any particular time. That this evidence is not admissible, see the following authorities: Cochran v. The State, 28 Texas Crim. App., 422; Bell v. The State, 20 Texas Crim. App., 445.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed, and remanded.

Judges all present and concurring.

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