Adams v. State

93 S.W. 116, 48 Tex. Crim. 452, 1905 Tex. Crim. App. LEXIS 233

Opinions

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

The first error discussed in appellant's brief is the following portion of the charge of the court: "Should you find that R.H. Moseley, or any other person other than defendant, cut deceased Clyde Yoe with a knife, which resulted in the death of deceased Yoe, then you will acquit defendant, and return a verdict of not guilty." Appellant's objection to this charge being that the same was on a defense urged; that is, that R.H. Moseley, or some other person than defendant, cut deceased Joe, and said charge failed to instruct the jury that if they had a reasonable doubt that R.H. Moseley, or some other person than defendant, may have cut deceased, then they should find defendant not guilty, but said charge required the jury to find affirmatively that R.H. Moseley or some other person than defendant, cut deceased Yoe with a knife, which resulted in the death of Yoe, before they would be authorized to acquit defendant.

The charge must be considered as a whole, and the prior clause thereof reads, as follows: "If you find that defendant did not cut deceased Clyde Yoe with a knife, or if you have a reasonable doubt as to whether or not he cut deceased with a knife, you will return a verdict of not guilty." This certainly cures any supposed error in the charge. Powell v. State, 28 Texas Crim. App., 393; Edens v. State, 41 Tex.Crim. Rep.; 55 S.W. Rep., 815. Appellant's contention is correct that the reasonable doubt must be applied to each and every issue, and if there was a doubt as to whether some one else did the killing, or if the issue is presented of some one doing the killing other than appellant, then of course it is the duty of the court to apply the reasonable doubt to this issue. We understand the charge here complained of does this when the charge is considered as a whole. It appears that the killing for which appellant was tried and convicted, occurred on the sidewalk in front of the Llano Hotel, in the town of Llano; in which difficulty deceased, Clyde Yoe, was killed; and also R.H. Moseley. The evidence conclusively establishes the fact, we take it, that Moseley was killed by Claude Yoe. Appellant insists that the evidence shows that, if he cut Clyde Yoe with a knife and killed him, it was in defense of Moseley upon whom the deceased was making a deadly assault.

In appellant's brief, he collates the following facts from the record: "On the evening and before the shooting, Yoe applied to Walter Roberts for a pistol, but there being nothing but `popguns' in the store, he did not take same. Next he goes to the Weeks' drug store to borrow Weeks' gun. In the absence of Weeks, his clerk (Holden) objected to his taking the gun; but he did so anyway, and sitting down examined it to see that it would work. Being asked if he was going to make an arrest, he says, `No, it's a personal matter, or affair, of mine.' Some thirty or forty-five minutes before the shooting, Moseley, Yoe, Adams, Biles, Hall and others were in the Klondyke Saloon, drinking. After taking a drink, Moseley left and was at the hotel when the other parties reached there. The parties remaining in the saloon were laughing and `guying' each other. Presently Yoe invites Hall to go to supper with him, and he in turn asks Biles to go, and the three, with others, start out to supper. Corbett and Biles, witnesses for defendant, relate also what occurred at the saloon, and show that the party went to the hotel, where Yoe registered all of them as with him. Moseley was there already. Up to this time there is no evidence of any trouble or unfriendliness between Yoe, Biles and Moseley or any two of them. Biles and Moseley, in talking about one Wyckoff getting his eyes blacked at the race track, used some oaths. The proprietor protested, and the parties apologized. This led to Biles proposing that they go to the restaurant, and they started. While waiting for Hall to telephone his wife, Yoe tried to get the parties to come back and get the supper already ordered. Biles said no, he would go to the restaurant. Yoe seems to think they are mistreating him, and so expresses himself. Biles said, `What was said was not intended for you, but if you take it that way, I can't help it.' Yoe jumped back, threw his gun on Biles, who was unarmed, and cursed him violently, until Biles turned and walked away, presumably to get a gun. In the meantime, Shirley, a witness for the State, heard Yoe, before he came out of the hotel office, say, `if there has to be trouble, let her come.' Coming from the office, he makes the first assault on Biles. From that time until the shooting is all over, Yoe never puts up his pistol. A number of the witnesses for the State and defendant tried unsuccessfully to get Yoe to do so. When these parties would try to go to Yoe he would throw his pistol on them and order them to stop on pain of being shot. Moseley coming back with Scott met Biles, being followed by Yoe with the pistol. Moseley asked Yoe what was the trouble. Yoe, cursing, kept his pistol on Moseley, who kept asking Yoe what was the matter. Hazlett says Yoe was cursing Moseley and told the latter to take his hands off his pistol or he would kill him. Moseley said he had nothing and held up his hands. Adams came up and told Yoe to put up his gun and behave himself, as no one wanted to hurt him. Adams left and Yoe then began firing at Moseley. Foster, for the State, says that when Moseley came up, Yoe ordered him not to come any further, saying, `You are a friend of Bill Biles, and not a friend of mine.' Moseley said he had nothing against him. Moseley started to put his hand on left hip and Yoe, with cocked pistol at Moseley's breast, ordered him to stop. Moseley said again, `I haven't anything against you,' and they shook hands. Every witness agrees that Yoe fired the first shot, and Hall says Moseley jumped as if hit the first shot. He also says Moseley drew his pistol, and had it in position to shoot before Yoe fired. On the other hand, Smith, for the defense, shows that Yoe fired his first shot before Moseley even started to get his pistol; that Yoe fired a second shot as Moseley drew his pistol; that Hall knocked Moseley's pistol up as he fired his only shot, and then wrenched same out of Moseley's hands. Only one cartridge was fired from Moseley's gun, and five from Yoe's. Through the witness L.M. Deats the State introduced a declaration of defendant made immediately after the shooting to the effect that `Clyde started it and got it stuck to him.'"

Appellant contends that the court should have presented, under the above facts, the issue of defense of Moseley, in behalf of appellant; and complains that the court, in that connection failed to give the following charge: "If from the evidence, you should find that defendant cut and killed deceased Clyde Yoe, but, should further find that at the time he did so (if you find that he did cut and kill said Yoe) it reasonably appeared to defendant by the acts of the said Yoe, or by the words, if any, of said Yoe coupled with the acts of said Yoe, that it was the purpose and intent of deceased Yoe to murder Moseley, and that defendant cut and killed deceased Yoe while said Yoe was in the act of murdering the said Moseley, and that said act of cutting and killing said Yoe (if he did cut and kill him), took place before the said Yoe had actually murdered the said Moseley, and that defendant so cut and killed the said deceased Yoe solely for the purpose of preventing the said Yoe from murdering the said Moseley, then you will find the defendant not guilty." Appellant further complains that the court failed to give the following instruction: "If from the evidence you find that defendant cut and killed deceased Clyde Yoe, but should further find that at the time he did cut and kill deceased Yoe (if you find that he did cut and kill him) that deceased Yoe had made a felonious assault upon one R.H. Moseley with a pistol with the intent to kill him, the said Moseley, and that, if he, said deceased Yoe, had thereby killed the said Moseley, the said deceased Yoe would have been guilty of murdering said Moseley, and defendant cut and killed deceased Yoe solely for the purpose of preventing him, deceased Yoe, from murdering said Moseley, then you will find defendant not guilty." We do not think that either of said charges were applicable to the facts of this case. In addition to the statement of appellant above copied, we desire to say that the record demonstrates animus on the part of appellant towards deceased, Yoe. Without collating the evidence, we believe that it shows appellant intervened in the difficulty brought about by Moseley, and not by Yoe; and he could not plead that he was acting in the proper defense of Moseley in the difficulty that resulted in Moseley's death. In other words, the evidence shows Yoe had had a previous altercation with one Biles; that deceased Moseley interfered in this difficulty, and insisted upon approaching deceased Yoe, and was only forced to desist by Yoe throwing his pistol down upon him, and forcing him to stop. Moseley threw up his hands, and said he had no pistol, when as a matter of fact he did. Yoe told him not to come on him; that he was a friend of Biles. He persisted in his effort to do so, and finally secured Yoe by the lapel of the coat; they simultaneously drew their weapons and began shooting. It is true that the record shows deceased Yoe shot first; and it is further true that he fired more shots than Moseley; but the record clearly demonstrates this was not Moseley's fault, since he was endeavoring to shoot, and parties interfered and took his pistol from him. If this had hot been done, evidently he would have killed Yoe before the wounds inflicted by appellant upon him (Yoe) with the knife resulted in his death: at any rate he would have inflicted upon deceased Yoe, deadly wounds in conjunction with appellant. The difficulty seems to have been an unwarranted drunken row between all parties, brought about by a trivial matter, as indicated in the statement copied from appellant's brief. Yet, we conclude, after a careful investigation of all the facts that the issue sought to be invoked in behalf of appellant, was not warranted by the evidence. The propositions of law relied upon to support the contention of appellant that he would have the right to defend Moseley to the same extent that Moseley had to defend himself, is true. But we hold that the evidence does not show that Moseley was defending himself. He brought on the difficulty. If he had desisted, and heeded the demand of Yoe, not to come upon him, the difficulty would not have occurred. Certainly the accidental fact that Yoe shot first would not raise the issue of self-defense in Moseley's behalf: he having no self-defense, appellant could not rely upon self-defense of him — appellant being present all the time. In addition to the facts above collated, the record shows that appellant cut deceased with a knife, from which wounds he died. A few moments after the difficulty, he was seen with a bloody knife making threats of vengeance on deceased and other parties. Just as the shooting began, defendant had hold of deceased, and one witness testified, that he heard a noise as if clothing was being cut or torn. The defendant testified to a complete alibi; and does not state anything in his testimony, nor do we think the evidence for the defense at all bears out the idea, that he was acting in defense of Moseley in any respect. Accordingly we hold that neither of these charges are applicable to the facts of this case, and the court did not err in refusing the same.

Appellant also complains of the following portion of the charge of the court: "If you find from the evidence beyond a reasonable doubt, that defendant struck deceased Clyde Yoe with a pistol, you are further instructed that you cannot convict defendant in this case for such action, if you find he did strike deceased, unless you further find that the State has established each of the first four preceding requisites to a conviction on page 7, paragraphs 1, 2, 3, 4, of this charge." Objections to said charge by appellant are that the same instructs the jury that, if they find as in said charge directed, then they can convict defendant for striking deceased Yoe with a pistol, when the indictment charges that the defendant killed deceased Yoe by cutting him with a knife. In the previous paragraphs of the court's charge, the jury are instructed, not to convict defendant, unless he killed deceased by cutting him with a knife; and that any other means or method of killing him could not be considered by the jury. At least this is the substance of the charge. The evidence shows that after deceased was down on the ground, appellant wrenched the pistol from his hand and violently struck him in the face with the same seriously injuring his nose; but the evidence conclusively shows that this wound did not cause his death, but that the knife stabs did. Now, conceding error, in view of this statement in the charge of the court it could not have injured appellant, since the jury were previously instructed not to convict appellant, save for killing deceased with a knife. They could not have considered he was killed by the blow, since the uncontroverted evidence shows that this wound was a superficial one.

By his eighth bill of exceptions appellant complains that the court erred in permitting the State to exhibit to the jury the pants worn by deceased at the time he was cut and killed. The objections to said testimony being that the introduction of the same did not serve to illustrate or explain anything in the case, as the fact of the cutting, the location of the wound and the extent and character of the wound were in no way put in issue; and the evidence was calculated to inflame the minds of the jury against defendant. To support his contention he cites us to Cole v. State, 45 Tex.Crim. Rep.; 71 S.W. Rep., 527; Christian v. State, 46 Tex.Crim. Rep.; 79 S.W. Rep., 562; Melton v. State, 11 Texas Ct. Rep., 745. We there held, as insisted by appellant, that when such testimony does not illustrate and make pertinent some phase of the evidence relied upon by the State for conviction, it is not proper to use the clothes for the mere purpose of inflaming the minds of the jury. The bill of exceptions shows that at the time said pants were introduced in evidence, State's counsel stated he offered the same to show the size of the blade that did the cutting. Appellant's counsel said, they raised no issue on that point. The court overruled said objections, and permitted the introduction of the pants. The bill is approved with the explanation: "That said pants were simply introduced in evidence to show cuts in clothes, and were not further exhibited during the entire trial of the case." While, as stated in said cases, the clothing of deceased should not be introduced, unless it has some pertinent bearing upon the trial of the case, the bill before us does not show that it did not have. It is true appellant says he raised no issue on that point; but this would not preclude State's counsel from insisting upon establishing his theory by positive and unequivocal evidence. Certainly the cuts in the clothing might indicate with reasonable accuracy the size of the weapon used in making them. Furthermore, our attention has not been called to any case where reversible error was held by sheer force of the fact that the clothes were introduced. We would not be understood as holding, however, that a case could not arise. Certainly the bill of exceptions now under consideration does not show such a state of facts as would authorize the reversal of this case.

By the fifth bill of exceptions appellant complains that the court erred in failing to grant his motion for change of venue; and cites us a long array of authorities, in which it is held that the evidence demonstrated the court erred in not changing the venue. However, a careful review of the evidence here does not show a condition of public sentiment such as would deprive appellant of a fair and impartial trial in Llano County. Therefore, the trial court did not err in refusing the motion to change the venue.

Appellant also complains there was error in the court permitting Stoudenmeir to accompany and guard part of the jury, before the panel was completed. The bill shows that Stoudenmeir was a deputy sheriff and had been acting as such for some time. While said Stoudenmeir was in charge of eight of the jury that had been selected up to that time, he told said jurors about a difficulty that had occurred between James Dunnaway and Bill Biles, a witness for the defense; in which said Dunnaway had arrested Biles and taken from him a pistol, and in making the arrest had struck Biles over the head, inflicting a wound. We do not see in what way this testimony injured appellant. While it was not admissible, it does not show in what way he could have been injured by it. Biles was a witness to matters that do not appear to have been controverted to any serious extent by the State, or if controverted, it was upon immaterial portions of his testimony. Hence we do not think there was error in the ruling of the court. The record shows that said Stoudenmeir had received the appointment as deputy sheriff, but had never taken the oath of office; nor had such appointment been filed or recorded in the office of the county clerk. This would not preclude his serving as deputy in the manner he did.

We have carefully reviewed all of appellant's assignments of error, and do not think any of them authorize a reversal. On the contrary, we believe the evidence amply supports the verdict, and that the charges were applicable to each and every phase of the evidence presented. As stated, R.H. Moseley, with appellant, provoked a difficulty; at least, he took the initiative in bringing about the difficulty with deceased, Yoe, in which difficulty both lost their lives. However, appellant is clearly demonstrated to have been an active participant and coadjutor with Moseley from the beginning to the end of the difficulty. Ostensibly he tried to get deceased Yoe to desist from the difficulty, but very quickly stabs him to death; and then seeks immunity from punishment on the ground that he was in the lawful defense of Moseley. We cannot agree that the evidence is insufficient. It is true, as stated, the evidence is somewhat confused in some phases, but taking it all in all, we are led to the conclusion that appellant was an active participant in the fight brought on by Moseley in which deceased lost his life.

The judgment is affirmed.

Affirmed.