Barklay v. State

213 S.W. 642, 85 Tex. Crim. 512

• Court: Court of Criminal Appeals of Texas
• Decided: June 25, 1919
• Docket: No. 5069.
• Status: Published

Opinions

LATTIMORE, Judge.

Appellant was convicted of manslaughter in the District Court of Jones County and his punishment fixed at two years confinement in the penitentiary.

An inspection of the record discloses that appellant was a tenant, and in 1917 cultivated twenty acres of land belonging to a Mrs. Hampton, the renting of which was attended to by Oscar Hampton, her son. The deceased was another son of said Mrs. Hampton. The hilling was on October 22, 1917. Part of the land cultivated by appellant was put in maize, and part in cotton, and the crop of maize had been cut sometime before the killing, except a small portion which will be mentioned later.

On the afternoon of the killing, the deceased was drilling in wheat on the stubble land from which the maize had been cut by appellant., and appellant seeing him so doing took his gun and went out where deceased was at work. Some little time before appellant got to .him, deceased turned his team and began plowing and drilling in wheat on stubble land which had been cultivated by Oscar Hampton. The two men met, or deceased was overtaken by appellant, near the end of the field and deceased was shot through the heart and killed, it appearing that deceased had gotten down from his drill and was going to appellant when shot. The spot where he was killed was three steps from where he alighted from his drill. It was further shown that deceased was unarmed. The doctor who examined his body said the gunshot wound was about the forth rib and ranged downward and inward at an angle of from forty to sixty degrees; that in tracing the course of the wound his finger slipped into the heart cavity, which was down about opposite the seventh rib. The facts, as stated above, were uncontroverted. It was also uncontroverted that where deceased had been drilling, the maize had been cut and he was not disturbing any of appellant’s crop "raised by him during said year. Appellant had moved off the place of Mrs. Hampton in September and was living on the Powers’ place at the time of. the homicide.

There were several theories contended for by the defense, namely: self-defense against an attack made by the deceased; defense of property ; negligent homicide, and accidential homicide.

But two matters are argued in appellant’s brief consisting of supposed errors in the charge of the court, appellant evidently being satisfied with the court’s charge as presenting the other theories of the case, and there being no bill of exceptions or errors presented here complaining of the introduction of evidence or any other irregularities during the trial. Appellant strongly insists that the trial court erred, as set out in his second bill of exceptions, to-wit: Failure “to charge the jury that the defendant had had a right to act to prevent or interrupt an intrusion by the deceased upon the lawful possession of' property.”

An examination of the record shows that no special instruction, correcting this supposed error, was presented. Conger v. State, 63 Texas Crim. Rep., 312; Davis v. State, 63 Texas Crim. Rep., 484; Rogers v. State, 71 Texas Crim. Rep., 149; Chant v. State, 73 Texas Crim. Rep., 345. We have examined all of the authorities cited by the appellant in support of this part of his contention but find nothing in any of them giving support to the theory that a man who is plowing a stubble field in the daytime may be killed because he is a trespasser or because he was a trespasser a few moments before he was killed. Such a doctrine would be a tremendous perversion of the justly sacred right given to every citizen to protect his property from unlawful violence. What property of appellant he could thus defend by taking human life is not shown. That deceased when shot, was not on even the stubble land which had been cultivated by appellant that year, is entirely undisputed. When asked some questions, apparently as to what interest he could claim in the stubble upon which deceased had been so drilling, appellant states “I had a little stubble. It would not amount to much. I don’t know whether it would amount to as much as $2.50 worth.” Appellant’s rental contract, under his own interpretation of it, was to rent the land until he could make a crop and gather it. The witness Short testified that appellant asked him to see Mr. Pool, to whom the rent was to be paid, and see if Pool would allow him to cut his part of the maize and leave the rent maize standing, and he testified that appellant said to him this: “He said if they would, he would turn that part of the land back to them, or something like that.” The witness Short says that he made the proposition to Mr. Pool for appellant, and that it was accepted and he so notified appellant, and he again stated that he would turn that part of the land back to them. It was also in evidence that a certain part of the maize was left standing. "Mr. Pool, the party to whom the rent was to be paid, said Short came to him with the proposition and he accepted the same. The witness Goodwin said he had a conversation with appellant a short time before the billing and appellant told him that he was done gathering his crop, and as stated above, he had moved off the place and the only remaining part of his crop which was not gathered was twenty-two pounds of cotton which was shown to have been gathered after the homicide in question. We have given this record careful examination to see if there was any evidence calling for an instruction on homicide in defense of property, and have found none.

What we have just said applies in large measure to the remaining ground of appellant’s contention before this court, namely, that the trial court erred: “Because the court failed to charge the jury in paragraph 8 of his main charge that the defendant would be justified in committing homicide not only in defense of his person, but in defense of his property, if in defense of his property, the deceased made an unlawful attack upon defendant, viewed from his standpoint, or was injuring or destroying defendant’s property, and that the defendant then acting' in his defense or in the defense of his property shot and- killed the deceased.” We repeat substantially what we have said, that even if deceased was trespassing when drilling in wheat on stubble land which appellant claims he had not turned back to his landlord, this would give appellant no right to- kill him; but in this case it is shown by the appellant himself, as well as by the other .eyewitness, the little son of the deceased, that as appellant crossed the field with his gun, coming toward the deceased, that the deceased turned his team on the land controlled by Oscar Hampton and was drilling and plowing at a point twenty-five steps from the edge of appellant’s stubble,' when appellant, came up to him and the shooting resulted. The measurements were made by the appellant’s own witnesses, Mr. May, who testified to the distance from the edge of Barklay’s land to the place where deceased was killed. There is nothing in such state of the case that could support a reasonable claim that the killing was in defense of property. If the intrusion of deceased upon the premises of appellant aroused him to such a pitch of anger as rendered him incapable of cool reflection, and this was the cause of the homicide, appellant has already received the benefit thereof at the hands of the jury, which found him guilty of manslaughter and gave him a punishment of only two years.

No error appearing in the record, the judgment of the lower court is affirmed.

Affirmed.