Court of Criminal Appeals of Texas, 1894

Parker v. State

Court of Criminal Appeals of Texas · Decided March 4, 1894 · Simkins, Hurt, Davidson

21 S.W. 604; 33 Tex. Crim. 111; 1894 Tex. Crim. App. LEXIS 53 (South Western Reporter)

Counsel

Marshall Rogers and Walton, Hill Walton, for appellant. — 1. The testimony of the State makes out a case of murder in the second degree; that of the defendant makes out a complete case of self-defense. The case of the State is murder in the second degree, because, and only because, the killing is not explained. The testimony of the defense furnishes the explanation, and all the testimony taken together erects a case of not only full but unequivocal self-defense. Penal Code, art. 606; Willson's Crim. Laws, secs 1036-1041, 1043. 2. The foregoing being the facts, the court of its motion, among other things, charged the jury as follows: "Upon the question of self-defense you are instructed, that defendant would be justified in killing the deceased if it is shown to have been done to prevent the deceased from murdering or maiming him; but in that case it must reasonably appear, by the acts or by words coupled with the acts of deceased, that he intended to murder or maim the defendant, and the killing must have taken place while the deceased was in the act of committing such offense after such act done by him, showing evidently an intention to commit such offense. If, therefore, you believe from the evidence that at the time of the homicide the deceased and defendant were having an angry altercation, and deceased told defendant that he could 'not call me a liar, you damned lying son-of-a-bitch,' and at the same time reached for his pistol and drew it, and that defendant did believe that the deceased was about to maim or murder him, and that while deceased was in the act of making such hostile demonstrations defendant shot and killed him, then the defendant was justifiable in killing the deceased, and if you so find, you will acquit him." (The italics are ours.) This charge was not excepted to, but it is so palpably erroneous and the injury to defendant so self-evident, that the law utterly condemns it, and this court will affirm the condenmation. Will it bear dissection? Let us see: (1) The law is, that the unlawful attack will justify homicide if it is such as produces a reasonable expectation or fear of death or some serious bodily injury. Penal Code, art. 574, sec. 967. Contrast this code law with the words of the charge as quoted above. The grounds of justifiable homicide are dismembered, restricted, and limited. The "serious bodily injury" is left out, while the attack is intensified from "reasonable expectation" to "showing evidently an intention" to commit the act that would justify the homicide. An omission on the one side that was fatal to according defendant his lawful right, and on the other intensifying the appearance by making it evident, instead "of reasonably to appear." (2) It intensifies "reasonable expectation" to "did believe," and restricts the hostile act to an evident intention to maim or murder, instead of leaving it with the law as it is written, "a reasonable expectation or fear of death or some serious bodily injury." (3) It restricts the right of defendant to act, to an evident intention to maim or murder on the part of the deceased; not only so, but defendant is yet further restricted, not only to deceased reaching for his pistol to execute his evident intention that defendant believed he was about to execute, but he must wait until deceased had drawn his pistol. (4) Not only all this, still defendant was not authorized to defend his life in this crisis of danger unless deceased had previously said to defendant "that he (defendant) could not call me (deceased) a liar, you (defendant) damned son-of-a-bitch." The law of self-defense includes resistance even to the death of the assailant to prevent bodily injury. Willson's Crim. Law, sec. 970. Article 570, Id., comprises all cases in which, from the acts of the assailant or his words coupled therewith, it reasonably appears that his purpose or intent is to murder, * * * maim, * * * or to do other serious bodily injury to the assailed party." Hunnicut's case, 20 Texas Crim. App., 643-645. That this is the law is fixed and settled in the jurisprudence of Texas, and can not now be disturbed without revolutionizing our judicial decisions. Stare decisis is a rule recognized throughout the civilized world. It is infinitely preferable to adhere even to a wrong decision than to have the law of the State that concerns life and liberty undulating like a cork on restless waves, or shifting as sands that take other position with every passing wind. Authorities cited in Hunnicut's case, supra. It was the duty of the court to give the law of the case (Willson's Crim. Law, sec. 2332; Code Crim. Proc., art. 677), and in felony must give all the law of the case. Willson's Crim. Law, sec. 2338. Error in charge, if fundamental, will work reversal, notwithstanding no exception be reserved thereto. Lloyd's case, 19 Texas Crim. App., 323, and authorities cited; Hayne's case, 2 Texas Crim. App., 84; Marks' case, 10 Texas Crim. App., 335; Bailey's case, 26 Texas Crim. App., 706; Willson's Crim. Law, sec. 2363. 3. The indictment is joint against the defendant and one Yndalacio Rosales for murder. On the 12th of the month Rosales made the statutory affidavit for severance, on the ground that in his belief there was no evidence against his codefendant, and that he needed his testimony in his (affiant's) defense. On the 13th defendant made a like affidavit, seeking his codefendant as a defensive witness. The parties could not or did not agree which should be first tried. The matter was remitted to the court for a ruling. The court ordered the defendant to trial over the objections of defendant. The affidavit of the codefendant Rosales was made known to the court by the first witness examined to be positively false, and the same testimony was very suggestive that the movement of Rosales was one adverse to defendant. In the language of this court, "the right to sever and place his codefendant on trial, and to use him as a witness if acquitted, is a right guaranteed to every one accused of crime." Conn's case, 11 Texas Crim. App., 391. There was no evidence against the codefendant. He was a material witness for defendant. Defendant was denied the testimony. He was denied a right given to him by the law. The State had the right to controvert the truth of the affidavit of defendant, wherein it is stated there was no evidence against the codefendant. Reed's case, 11 Texas Crim. App., 515. No proposition to controvert was made, and no controverting affidavits tendered. This is a valuable right, and the court will protect it in all proper cases where it has been denied. Forcey's case, 29 Texas Crim. App., 408; Tieman's case, 28 Texas Crim. App., 144. 4. The defendant moved to quash the special venire, because the return of the sheriff thereon failed to state the diligence that had been used to summon the jurors, and the cause of the failure to summon them. Code Crim. Proc., art. 614. The court overruled the motion. The action of the court was duly reserved by bill. The venire was for 120 men, of whom 93 were summoned. The return of the sheriff on the point made was as follows: "The following named persons were not summoned as special jurors in this case, for the reason that said persons reside or are in such remote parts of the county, and after diligent efforts could not be reached within the time allowed the sheriff for making service and return of this writ." Both preceding and following this recitation by the sheriff is given a list of the jurors "not found, for want of time." The whole spirit of the law is frustrated if compliance with it is ordered and executed in the manner shown here. Murray's case, 21 Texas Crim. App., 474. 5. The third bill of exception reserves the point as to qualification of witness Cecilio Bustamente, because of lack of moral culture to entitle him to be sworn and examined in the case as a witness for the State. The court ruled that the witness was mentally capacitated, and had sufficient moral training to be used as a witness. There were no instructions given to this boy, no moral lessons imparted by the court or by a committee. Holst's case, 23 Texas Crim. App., 1; Taylor's case, 22 Texas Crim. App., 531. 6. A fourth bill of exceptions was reserved to a proceeding that was disgraceful to civilization — in full keeping, however, with excited human passion and thirst for human life. The scene was this, as painted in the transcript: The evidence was closed, and the closing argument being made for the State. Counsel referred in impassioned eloquence to the pity that the jury owed to the deceased's family, instead of the defendant, and urged on the jury to bring in a verdict in support of the indictment. After this argument, and before the charge of the court was given, the thronged audience applauded said argument by the clapping of their hands and the stamping of their feet in the presence and hearing of the jury, court, and bar, and defendant was powerless to prevent it. This demonstration on the part of the audience, defendant says, was calculated to prejudice his case in the minds of the jury; but which demonstration was immediately suppressed and reprimanded by the court. All honor to the court, but its suppressive force and just reprimand were too late to save the dignity and majesty of the law and the sacred right of the defendant to a fair and impartial trial. The defendant here was not in fault, as the court intimates the Eanes were in their case. 10 Texas Crim. App., 453-454. This defendant was powerless, and did nothing during the trial or afterwards to arouse the whirlwind that swept over him and through the minds and hearts of jurors, caused by the maddened crowd, whose breath was hot with the thirst for defendant's blood. This occurrence, though ten times reduced in intensity, would imperatively demand a reversal of the case. The abuse of the privilege of counsel is evidenced by the effects it produced. Jenkins' case, 65 N.C. 563 ; Thompson's case, 43 Tex. 268 ; Hatch's case, 8 Texas Crim. App., 418; House's case, 9 Texas Crim. App., 567. R.L. Henry, Assistant Attorney-General, for the State.

Addendum

ON MOTION EOR REHEARING.

HURT, Presiding Judge.

Appellant and Rosales were jointly indicted for this murder. Each moved, on proper affidavit, for a severance, asking that the other should be tried first. This motion was made under article 669a, Code of Criminal Procedure. Not agreeing upon the order in which they should be tried, the court directed that appellant be tried first. In this there was no error. The action of the court was in conformity to the statute (article 670). The court below is not presumed to know the facts of the case when passing upon this matter; not presumed to know that there was not sufficient evidence to convict Rosales, or that the evidence was stronger against appellant than Rosales.

In closing the argument for the State, counsel referred “in impassioned language to the pity that the jury owed to the deceased’s family, instead of to the defendant, and urged the jury to bring in a verdict in support of the indictment; and after said argument, and before the charge of the court was given, the thronged audience applauded said argument, by the clapping of their hands and stamping of their feet, in the presence and hearing of the court and jury.” The court, it *124 seems, of its own motion promptly suppressed the demonstrations, and reprimanded those applauding. Notwithstanding this prompt action of the court, counsel for appellant contend that this court should, because of such demonstrations on the part of the audience, reverse the judgment. There was no motion to change the venue of this case. There was no complaint that a fair trial could not be had in that county. If such a motion had been made; such conduct could have been looted to in passing upon the motion for new trial based upon the supposed error in overruling the motion for change of venue. But to make a rule that a judgment will be reversed because of such applauding in all cases, though promptly suppressed and reprimanded, would be very dangerous indeed. A person with death or imprisonment before him would not hesitate to have his Mends ready and willing to applaud counsel for the State, with the risk of being sent to jail for contempt. This could all be arranged and executed, and the court could not ascertain the fraud by learning that the applause was instigated by the friends of the accused. ¥e have very carefully examined the evidence in this case, and believe it establishes the' guilt of appellant of murder of the first degree with reasonable certainty.

Now, we desire to state, (1) that this court can not pass upon the credibility of witnesses; (2) that if the testimony of the boy (Busta-mente) is true, appellant shot deceased without cause. In fact, appellant’s version of the facts attending the homicide is absolutely false, and we can not reverse this judgment because the evidence fails to support the verdict.

In amended motion for rehearing, we find ex parte affidavits to the effect that the verdict of the jury was returned after the term of the court had expired. The record contains no such matter. Can we consider these affidavits'? We can not. If in fact the verdict was returned after the term of court had expired, it and the judgment rendered thereon are null and void; that is, no verdict, and consequently no judgment. Now, if the sentence of the court upon a judgment entered upon a verdict thus returned should be attempted to be enforced, the defendant would have his remedy by writ of habeas corpus. On the trial of the writ, however, the State would have the right to be heard on the issue as to whether the verdict in fact was returned after the term of court had expired.

The motion for rehearing is refused.

Dehearing refused.

Opinion of the Court

SIMKINS, Judge.

The appellant was convicted of the murder of Elias Mussett, and sentenced to imprisonment in the penitentiary for life, from which judgment he appeals to this court. The facts are few, but significant. Mussett, the marshal of Corpus Christi, was shot by appellant, who was one of his policemen. It seems that there was ill feeling between the parties, existing perhaps for years'. On the night of the homicide the parties met near a dance, and the marshal taunted the appellant with being run out by some revellers the night before. He denied it, and stated that the marshal’s informant was a liar. This was testified to by the witness Mitchell. Late in' the night they again met and had loud words, as testified to by the defendant’s witness Vela. At 1 o’clock that night deceased was on his way home, when he was stopped by Yndalacio Eosales, a saloon keeper, who talked a minute or two, when, appellant rode up to them, and in half a minute a shot was heard, and Mussett fell from his horse, shot through the heart. Appellant claims that he shot to protect his life; that Mussett was just drawing to shoot him, when he drew and fired first. And a pistol was found near deceased’s hand, but it was proven by the State that the codefendant Yndalacio Eosales placed the pistol there. The *122 appellant’s statement makes it a case of self-defense, bnt it is contradicted by tbe other witnesses. He states that at the first meeting the marshal was insulting, and he simply asked him to investigate the matter. On the contrary, the witness Mitchell heard him denouncing Mussett’s informant as a liar. At the second meeting he claims that the marshal did the threatening, and he was quiet; but Yela, defendant’s witness, says there was loud talking by both parties. At the third meeting he says the deceased again renewed the charge, and he told him that his informant was a liar; that the deceased asserted “it was true;” that he replied “it was alie;” that deceased replied, “You can’t tell me that, you lying son-of-a-bitch, ’ ’ and drew his pistol, but before he could use it he shot him. Francisco Grande says Parker rode up and spoke. He does not know what was said, but in half a minute or so the pistol fired and killed deceased. Witness closed his shutters and went across the street, and was told by Yndalacio Eosales that appellant “killed deceased for nothing.”

1. Appellant complains that the court erred in his charge on self-defense. The charge practically instructed the jury, that if they believed defendant’s version of the difficulty, they should acquit him; and also charged them that the defendant would be justified in killing deceased if done to prevent deceased from wounding or maiming him; but, to justify the killing, it must reasonably appear from the words and acts of deceased that he intended to murder or maim defendant, and the killing must be done while deceased was in the act of commit ting such offense, or after some act done by him showing such evident intention. A similar charge by the same judge was sustained by this court in the Gonzalez case, 30 Texas Criminal Appeals, 225; and, though in some respects subject to the criticism of appellant’s counsel, it practically states the law, and, there being no exception to it, we do not think, upon the whole case, appellant has received any injury. Cunningham’s case, 17 Texas Crim. App., 99; Davis’ case, 28 Texas Crim. App., 553; Penal Code, art. 570, subdivs. 1, 2. The jury evidently rejected the entire statement of appellant upon which alone any charge of self-defense could have been predicated, and appellant could not have been injured by reason of the imperfect charge.

2. The appellant complains that the court erred in overruling his motion to quash the special venire because of the failure of the return to show the diligence used in summoning the absent jurors. There were one hundred and twenty persons required to be summoned in the writ. The sheriff summoned ninety-three persons, and returned that eight persons named by him were found, by proper search and inquiry at their place of residence, not to be in the county, and that nineteen persons named in the return had not been summoned, as they resided or were in remote parts of the county, and after diligent effort could not be reached within the time allowed the sheriff for making *123 service and return. The writ was issued on tbe 9th of May, and made returnable on the 11th, the jurors to appear on the 13th of May. We think the return was sufficient. The time seems to have been very short, but the motion to quash did not present any objection on that ground, nor is it shown that the jurors summoned were not sufficient to enable the appellant to obtain a fair and impartial jury. Charles’ case, 13 Texas Crim. App., 663.

3. The court did not err in permitting Cecilio Bustamente to testify in the case. The witness was twelve years old; on examination by the court, stated “it was wrong to tell a lie;” that if he told a lie he would be punished by law, but did not know what punishment would be inflicted; had never been to school; had been to the Catholic church. The court held the witness qualified. It has been repeatedly held by this court that the method of testing the competency of such a witness is confined to the discretion of the trial judge, and his determination of the question will not ordinarily be disturbed on appeal in the absence of any showing of abuse of the discretion. Taylor v. The State, 22 Texas Crim. App., 544. We see no abuse of discretion here. The testimony of the witness was connected and consistent, and corroborated. We see no other question requiring an examination, and the judgment is affirmed.

Affirmed.

Hurt, Presiding Judge, concurs. Davidson, Judge, absent.

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