Boddy v. State

14 Tex. Ct. App. 528, 1883 Tex. Crim. App. LEXIS 207

• Court: Court of Appeals of Texas
• Decided: June 29, 1883
• Docket: No. 2727
• Status: Published

Opinion

Hurt, Judge.

This is a conviction for murder in the second degree, the punishment being assessed at fifteen years confinement in the penitentiary.

Charles Burns, the deceased, was shot and killed by appellant at the house of one Thomas Jefferson, on the morning of the thirtieth-first-day of December, 1882. The persons present at the homicide were John Brown, Thomas Jefferson and the defendant.

John Brown testified, among other things, as follows: “I and Mr. Jefferson were standing by the stove about seven o’clock in the morning, when defendant came in where we were. I noticed that defendant had his head bandaged up, and that it was and had been bleeding, and I remarked: ‘It seems that somebody has been getting in your upper story;’ and he replied: ‘Yes, but I’ll get even.’ Just after this, Burns came in and said ‘good morning.’ Myself and Mr. Jefferson replied ‘good morning,’ but Walter Boddy made no answer, and after a short time Burns says: ‘It seems there’s some damned man in this house who don’t want to speak to me.’ Then defendant said: ‘By Jesus Christ, mister, I understand you have been telling that woman some tales on me, and caused her to hit me on the head with a bottle;’ and Burns says: ‘Yes, I did tell it; don’t you like it?’ Then Walter Boddy took three steps forward, and he had his hand in his overcoat breast pocket, and turned and faced Burns and said: ‘I don’t like it.’ Then Burns says: ‘Help yourself,’ and started toward defendant, when defendant quickly drew his pistol out of his overcoat pocket and fired, and Bums fell dead. When Burns fell, defendant took a step towards him and pointed his pistol towards Burns, but did not shoot again. He looked at him and turned away.” * * * *

Cross-examined:

“There was a knife lying on a table almost between Boddy and Burns, and as Burns started towards defendant he, Burns, had his hand extended towards the knife. I don’t know what he intended to do with the knife, or that he intended to get the knife; he simply had his hand extended towards it. This occurred in Kinney county, Texas. * * * Defendant had his hands in his overcoat pockets when he stepped out from the stove. The morning was rather cold—cold enough for one to wear an overcoat. Defendant never drew his pistol till Burns started towards him. The knife on the table was a butcher knife. Burns’s manner was quick, and he was moving towards defendant with his hand extending towards the knife. He tried to dodge when defendant drew his pistol, and in doing so turned the side of his head to defendant. He never tried to run, and never spoke after defendant drew his pistol. I don’t know what Burns wanted with the knife, nor do I know that he intended to get the knife; don’t know how long defendant had his hands in his pockets. To get to defendant, Burns had to pass by the end of the table on which the knife was lying. He fell down dead by the table.”

Thomas Jefferson, a witness for the defense, in regard to the facts immediately attending the homicide, testified as follows: “ I know the defendant. I did know Charles Burns; he is dead; he was killed at my house about seven o’clock on the morning of thirty-first December, 1882. Myself, John Brown and defendant were standing by my stove in the post of Fort Clark, when Burns came in and said ' good morning,’ and I and Brown answered ‘good morning;’ but defendant said nothing. Burns came and stood by Brown. Brown was between me and Burns, and I was between defendant and Brown. After a little while Burns said: ‘It seems there is some damned man in this house who don’t want to speak to me;’ and defendant said: ‘Mister, you ought not to want me to speak to you after telling that woman those tales and causing her to mob my head up—at least I understand you did.’ At this time defendant was standing with his hands in his overcoat pockets this way (the witness illustrating by putting his hands in a crossed position over the breast). Burns replied: ‘Yes, I did tell her; don’t you like it?’ Then defendant stepped out about three steps and turned and faced Burns, and said: ‘No, I don’t like it;’ and Burns says: ‘Help yourself;’and defendant said: ‘lean help myself;’ and Burns made a quick start towards defendant, and at the same time reached his hand for a knife lying on the table; and defendant quickly drew his pistol and fired, and Burns fell dead. He never had time to get the knife. The knife was a large butcher knife, used for cutting meat and hacking steak. When Burns fell defendant looked at him, and turned away and went into another room. * * * * Defendant never fired his pistol until deceased started towards him and reached out for the knife. • He did not say ‘ I can help myself,’ and then immediately fire; but when he said ‘ I can help myself,’ Burns made a quick movement towards him and reached towards the knife at the same time. Defendant then drew his pistol from his breast pocket and fired; he fired quick, without taking aim. The pistol looked like an army size Colt’s six shooter. ” * * *

The State proved by other witnesses that this witness swore before the jury of inquest and failed to mention the knife; and by the sheriff that this witness, in speaking of the homicide, termed it a “cold blooded murder.”

Notwithstanding these apparent discrepancies, the testimony of the only witnesses who saw the killing imperatively demanded of the court a charge upon the principles of law governing in cases of self-defense—not abstractly, but directly applicable to the facts and circumstances tending to support this defense. The learned judge below gave in charge to the jury, bearing upon this subject, the following instructions:

“The law gives a man whose life or person is unlawfully attacked by another the alternative of seeking the protection of the government from the intended unlawful attack—assassination, or to abide the risk of protecting himself by his own arm. If he should choose to adopt the method of protecting himself, it is allowed him under the following conditions: That he must have the patient watchfulness, courageous firmness, and reasonable discretion to await the doing of some act by his antagonist which is reasonably calculated to induce the belief, and does induce the belief, that he is then in immediate and imminent danger of losing his life or suffering some great bodily harm from that which really is, or reasonably appears to be at the time, the impending attack of his assailant. The law does not fix upon what that act demonstrating the intention shall be; Still it must be some act which is reasonably calculated to induce the belief, and does induce the belief, that the attack has then commenced to be there executed, and not a mere act of preparation to attack. The party who is thus assailed is not bound to retreat in order to avoid the necessity of killing his assailant.

“If the defendant was attacked by Charles Burns in such a manner that it produced in defendant’s mind a reasonable expectation or fear of death, or of some serious bodily injury, and you so find or have a reasonable doubt thereof, you will acquit him. * * * *

“The law gives a man whose life or person is unlawfully attacked by another the alternative of seeking the protection of the government from the intended unlawful assassination. ’’**** t

What protection can the government render a man against assassination, if impending? “Orto abide the risk of protecting himself by his own arm.” What risk must he abide? That of being assassinated by his adversary? or that of punishment at the hands of the government? If his adversary was in the act of inflicting, or had done some act showing an immediate intention to inflict, serious bodily harm, or to kill or assassinate defendant, no risk could be incurred by him in “ protecting himself by his own arm,” unless he had provoked the difficulty or produced the occasion with the intention of slaying his adversary, etc.

“If he should choose to adopt the method of protecting himself, it is allowed under the following conditions: That he must have the.patient watchfulness, courageous firmness, and reasonable discretion to await the doing of some act by his antagonist which is reasonably calculated to induce the belief that he is then in immediate and imminent danger of losing his life, or suffering some great bodily harm.” * * * Why cloud the plain legal principles of the law of self-defense with this disquisition, when a citizen is being tried for his life or liberty? These principles should be made eminently practical, and to accomplish this they should be stated in plain and simple language, stripped of all unnecessary verbiage, so as to be readily comprehended by the jury. We are of the opinion that these principles are so entangled within the maze of these learned observations as to render it very doubtful whether the jury understood the law applicable to self-defense.

“Still it must be some act which is reasonably calculated to induce the belief, and does induce the belief, that the attack has then commenced to be then executed, and not a mere act of preparation to attack.” “And not a mere act of preparation to attack.” This, applied to the facts relied upon by defendant in support of his plea of self-defense, evidently was calculated to mislead the jury. While abstractly correct, it .was made the instrument by which an error was committed as effectually as if done by a most vicious fallacy. In its effect the chief corner stone of the defense was crushed, and its structure made to crumble to dust. There was not a fact or a phantom of facts tending to show preparation by deceased, save that relating to the effort to seize the knife. What then was this charge most evidently calculated to do? Impress the jury with the belief that when Burns, the deceased, made a quick movement towards defendant, and reached towards the knife at the same time, he was only making preparation to bring on the attack. The rule upon this point is that the killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.

To come within this rule is it required that the party slain must have actual possession of the weapon with which the offense is to be committed? Could not an act be done, though -one of preparation, which would show evidently an intent to commit the offense? Must, if a pistol be drawn, the adversary cock and present the same, to constitute such an act? To term the act of reaching for the knife, under the circumstances attending it, a “mere preparation,” is a perversion of language as understood in legal phraseology, and it was, by thus terming it, calculated to induce the belief that such act was not sufficient to impress the defendant with reasonable apprehension of the loss of life, or of some serious bodily harm.

The law applicable to the defense of the appellant is not affirmatively given in this charge. In O’Connell v. The State, 18 Texas, 343, Justice Wheeler says: “It is no objection to the charge of the court that it supposes the state of fact which the evidence showed really to exist, and declared the legal conclusion applicable to such a state of fact. That is precisely what every charge should do. That is the design and purpose of giving instructions to the jury; it is to inform them respecting the law applicable to the particular case in hand, and the more exactly the charge is adapted to the very case, the more liable will the jury be to arrive at a correct conclusion in the application of the law to the fact.” (Russell v. The State, 18 Texas, 713; Marshall v. The State, 40 Texas, 200; Lindsey v. The State, 1 Texas Ct. App., 327; Lopez v. The State, 42 Texas, 298.)

Because of the errors in the charge, the judgment is reversed and the cause remanded.

Heversed and remanded.

Opinion delivered June 29, 1883