Brown v. State

112 S.W. 89, 54 Tex. Crim. 121, 1908 Tex. Crim. App. LEXIS 348

Opinions

DAVIDSON, Presiding Judge.

The writer respectfully states that he cannot agree with his brethren in holding the Act of the Thirtieth Legislature constitutional which authorizes those counties in which is included a city or cities aggregating 20,000 inhabitants to operate under a different rule with reference to the summoning and empaneling of grand and petit juries from the rule generally in vogue in the State. I have stated my reasons for dissenting at some length in the case of Bob Smith v. State, decided at the present term, and refer to that case for dissenting on that proposition. The majority of the court thinks the judgment should be reversed for reasons herein stated.

Our Brother Brooks has written an opinion, among other things, holding the charge is sufficient as given by the court in regard to the issue of manslaughter. We cannot concur in these views and believe the charges given are sufficiently erroneous in this respect to require a reversal of the judgment. A sufficient summing up of the facts as bearing upon the question of manslaughter will be found in the statement by Judge Brooks in his opinion, herewith filed and unnecessary here to recapitulate. The charges given are very general, following the statutory definition. Among other things, the court charged that a provocation must arise at the time of the commission of the offense and must not be the result of a former provocation, and that the act must be directly caused by the passion arising out of the provocation, and that it is not enough that the mind be merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed; and further an assault and battery producing pain or bloodshed or any condition or circumstance, or combination of conditions or circumstances, which is capable of creating and does create sudden passion, such as anger, etc., which renders the mind incapable of cool reflection; and further, in a general way, instructs the jury that the provocation causing sudden passion must arise at the time of the killing, and it is the duty of the jury in determining the adequacy of the provocation to consider in connection therewith all the facts and circumstances in evidence, and if they should find that, by reason thereof, the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind, in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law. Exception was reserved to these phases of the charge and omissions. Appellant’s contention is that these charges on manslaughter are not sufficient. That as given the charge relegates the adequate cause and sudden passion, first, to an assault producing pain or bloodshed, and, second, a general statement as above indicated. His further contention is that the court should have gone farther, and applied the law to the facts more particularly to the end that the jury might understand the nature of adequate cause and sudden passion arising out of the immediate facts attending the homicide and as applicable thereto. If the deceased provoked the difficulty by taking a seat upon the arm of the chair occupied by appellant and placing his arm around him under the circumstances detailed by him, then deceased was the aggressor, and produced the occasion of the difficulty, and appellant had the right to ask him to desist and upon his failure to do so to resent such insult and assault, and if Johnson then attacked him and caught him in the collar with his hand and struck him over the eye and followed this up by throwing him upon the floor and choking him, these would be additional causes of provocation, and although appellant may have gone too far in using his pistol by shooting, it would still be manslaughter, and this phase of the law should have been given under the facts of this case, and if appellant used more force than was necessary under the law of self-defense, and his mind was incapable of cool reflection, his offense might still be no higher than manslaughter. Second. Even if appellant went sufficiently far, in repelling the act of the deceased in going to the chair, to place him beyond the rule of self-defense, and drew his pistol with a view of forcing the deceased to absent himself from the chair and taking his arm from around him, appellant, and this was done not with a view of killing but of forcing the deceased from him, and in the struggle he shot and killed, this would be manslaughter. If, however, appellant drew his pistol, conceding that he was in the wrong, and it was drawn for the purpose of taking Johnson’s life, then it might be otherwise, but that is not under discussion at this point. And if during the struggle appellant was getting the worst of the difficulty by reason of the athletic power of his antagonist and was being choked, and he shot to save his life, or because of the severe punishment being inflicted by the deceased, this would be manslaughter. Third. If appellant believed at the time that Johnson took a seat by him that it was done for the purpose of provoking him into a difficulty to the end that he, Johnson, and Miller might inflict severe punishment on him, and that he anticipated from the beginning and during the difficulty that the conflict would be between himself and two antagonists, this would have a tendency to more strongly agitate his mind and he would have the legal right from the standpoint of manslaughter to defend against both, as much so as he would have the right to defend against the attack or anticipated attack of both if his life was in danger or his body of serious injury from the standpoint of self-defense. In other words, the right of appellant to resist the attack or anticipated attack by two antagonists, under the circumstances, would be as cogent from the theory of manslaughter as it would be from the standpoint of self-defense, provided, however, that he believed that such attack was made for the purpose of inflicting chastisements causing pain or bloodshed. The court recognized this doctrine as applicable to the law of self-defense, and so charged the jury, coupled with the further proposition that his life must be in danger or his body of serious injury in order to justify the killing. It is sometimes a little difficult to draw the line, where the question of serious bodily injury is involved, between self-defense and manslaughter, and where these propositions are in the case, the court should definitely instruct the jury so that they will understand where one ends and the other begins and be able to draw the line of demarcation from the facts. So it is clear, as we understand the facts, and the law, that if Johnson alone provoked the difficulty with a view of inflicting severe chastisement, as developed by the facts, upon appellant, he would have the legal right to have this phase of the law. submitted as bearing upon manslaughter. If appellant, under the circumstances, thought the deceased was bringing on the difficulty to be joined in by Miller, and that the difficulty was to proceed upon the theory of both of them giving him a beating, he had the right to have the law of manslaughter charged from this standpoint. Or if appellant, being in the wrong, but with no intention of killing, and was sufficiently pressed to believe that his life was in danger, and shot fatally, he still would be entitled to an application of the law of manslaughter from this standpoint. As before stated, the court recognized the doctrine of self-defense from the attack or anticipated attack of the deceased and Miller, but did not in struct the jury in regard to this phase of the law as applicable to manslaughter. Because of these defects or omissions in the charge, this judgment must be reversed.

There is another charge in the case that it occurs to us is erroneous, which is as follows: “The fact, if it is a fact, that the defendant Brown was in the wrong in striking Miller, as that difficulty is before you in the evidence, cannot be considered by you in passing upon whether or not the defendant was the aggressor in the subsequent transaction with the deceased Johnson resulting in the death of said Johnson.” How, it will be noticed from the facts that appellant was in the wrong in striking Miller, and that a separation occurred as well as an abandonment of the difficulty, which was followed by a hurried conversation between Miller and deceased, and followed still further by the approach of deceased on appellant with an immediate difficulty ending in death of the deceased. This transaction between Miller and appellant seems to permeate this record. It entered into the trial of the case from beginning to end, and gave it a coloring that the facts would not give forth but for the attack on Miller by appellant. If this testimony was legitimate, then what was its office or mission in the case? The State introduced evidence in regard to this difficulty. The defendant testified also about it, and appellant makes it clear that he thought and believed from what he saw occurring between Miller and deceased that -Johnson was to provoke the difficulty and Miller to enter into it. We do not see how these facts can be in this record and yet not be considered by the jury in 'passing on the question as to whether or not the defendant was the aggressor. It was the fact that Miller and deceased had a conversation and that deceased at 'once approached appellant which made him believe that Johnson intended him harm, and this, under appellant’s testimony, .was the moving cause for his repelling the advance of the deceased, and which left the impression upon his mind that the familiarity in sitting on the arm of the chair and putting his arm around his body and “clinching” Mm in the peculiar manner testified by-appellant was the beginning of a difficulty in which he was to engage with deceased and Miller. This charge of the court eliminates this by informing the jury that they could not consider this matter at all in passing upon the question whether or not appellant brought on the difficulty with deceased. It was a very potent fact under appellant’s testimony, and tended to show that Johnson was the aggressor, and if the aggressor, then, under the circumstances, the jury ought to have considered it because it put appellant in the legal right. This practically not only withdrew from the jury the testimony and this phase of the case, but turned it cogently against the accused.

Many objections are made to the admissibility of testimony, among others, of Dayton Moses, Dr. Dimmer, as well as a statement in writing signed by the deceased, all purporting to give certain dying declarations of A. S. Johnson, touching the facts of the killing. The record in respect to these matters is very voluminous but has been carefully considered. We think that this testimony was admissible and taken together made such a case as authorized the court to permit it to go to the jury. We do not believe, however, that the evidence is so conclusive and irrefragable as to have justified the court in refusing to instruct the jury, as requested, to the effect in substance that before they should consider such purported dying declarations of deceased" they must find and believe from the evidence that when made, if indeed made by him, they were voluntarily uttered, that he was rational and that at the time he was conscious of impending death. In the case of Taylor v. State, 38 Texas Crim. Rep., 552; 43 S. W. Rep., 1019, this rule is commended by Judge Henderson in this language: “Inasmuch as- some controversy was made by appellant as to whether said declarations were freely and voluntarily made, and that the deceased was of sane, mind at the time, and conscious of approaching death, the court instructed them that, if said declarations were not made under the safeguards required by law, not to consider same.” After quoting the charge given in that case he adds: “In our opinion, it embodies a correct rule on the subject, and was applicable to the testimony.”

Again, we believe the court erred in admitting in evidence the details of the prior controversy or difficulty between appellant and one Miller. Appellant in his direct testimony given in his own behalf, stated in substance that he had a short time before this, had some controversy with Bob Miller. The mere fact of such difficulty was stated by him but none of the details of such difficulty were given, the cause thereof, or what took place between the parties. The mere fact was stated in connection with his testimony in substance to the effect that soon after this he saw Miller and deceased talking together and looking in his direction, as explanatory of his apprehension and belief that Miller and Johnson meant' to do him some harm, and that Johnson’s conduct in coming to him soon thereafter was in furtherance of a common design on the part of Miller and Johnson to engage him in a difficulty. In this state of the proof the prosecution was permitted, over the objection of appellant, to prove by A. B. Tabor and Bob Miller, the details of the difficulty between Miller and appellant prior to the homicide and to contradict appellant in respect to his testimony as to such details and to require him to make admissions and statements in respect thereto, the probable, if not indeed, the necessary effect of which was to embarrass and prejudice his case before the jury. Among other things, the following examination of appellant by counsel for the State was allowed over the objection of his counsel:

“Q. Isn’t it a fact that a few minutes before you had the difficulty with Albert Sidney Johnson you walked up to Bob Miller and said, ‘There’s the God-damnedest son-of-a-bitch in Texas?’ A. Hot exactly that language. Q. Well, what language ? A. Bob Miller had been circulating reports that injured" my business. Q. Wait a minute; please answer my question. What did you say? A. I said to him, ‘You are a God-damn lying son-of-a-bitch.’ Q. Didn’t you stand there and curse him for several minutes? A. Ho, sir; I didn’t. Q. Didn’t you stand there with your hand on your pistol? A. Ho, sir; I didn’t. Q. And were cursing him. Did he resent it; did he say a word; didn’t he stand there while you cursed him without saying a word? A. Ho, sir; he went out right immediately round the end of the desk and he says, T will be back.’ Q. Isn’t it a fact that when you got through cursing him you slapped his jaws? A. T slapped him at the same time I made the remark to him. I said just what I repeated a moment ago, and he went out and said he would be back. When I slapped Mr. Miller he walked immediately over round the end of the desk and says, T will be back in a minute.’ And Mr. Tabor took me by the arm then and turned round and says, ‘Let’s don’t have any trouble, Brown,’ and I told him I didn’t want any trouble, but that man had to let me alone.” When it was proposed to go into this matter and the first inquiry was made in respect thereto, appellant objected to the question and objected to any inquiry into the details of the difficulty with Miller or evidence of any of the details of his difficulty with a third party as not having any connection with the homicide on trial, except insofar as it may have affected appellant’s apprehension and fear from the apprehended attack from Miller and whether appellant was right or wrong in the difficulty with Miller could not be used as a circumstance against him and the testimony was inadmissible, irrelevant and immaterial and contained and related to extraneous matters hurtful and prejudicial to him. After the cross-examination of appellant the State introduced both A. B. Tabor and Bob Miller in rebuttal, who testified at great length as to the details of said difficulty between appellant and Miller prior to the homicide, and each of said witnesses was permitted to give his version of what occurred in such controversy. We think that as presented, these objections should have been sustained. Appellant had gone no further in his testimony than to assert as a fact some prior difficulty with Miller. This was not only admissible but important as throwing light on his claim that he believed when he saw Miller and Johnson in conversation and looking in his direction that in view of such former difficulty and conference their conversation related to him. It would, of course, have been admissible for the State to have shown that in fact no such difficulty or controversy with Miller had taken place, and it might have been proper to have shown that if in fact there had been such controversy it was not of such gravity as would fairly have justified Brown in believing that the conversation between the parties named had any reference or relation to him, but it can not be claimed that the testimony elicited from appellant or produced from Miller and Tabor, stopped here. On the contrary the effect of it was probably to place appellant in a bad light before the jury and to prejudice his case. It is always a safe rule to limit, as far as practicable, evidence to the very matter and ease in hand and to exclude admissions and testimony of extraneous offenses, contests, controversies and difficulties. Ware v. State, 36 Texas Crim. Rep., 597; Brittain v. State, 36 Texas Crim. Rep., 406; Morrison v. State, 39 Texas Crim. Rep., 519; 44 S. W. Rep., 511; Woodward v. State, 51 S. W. Rep., 1122; Barkman v. State, 41 Texas Crim. Rep., 105; 52 S. W. Rep., 69, and Chumley v. State, 30 Texas Crim. Rep., 547.

Our Brother Brooks has written his views at length and reasons why the judgment should be affirmed. The majority of the court are of opinion, however, that for the reasons above indicated the judgment should be reversed and it is accordingly ordered.

Reversed and remanded.