Duke v. State

133 S.W. 432, 61 Tex. Crim. 19, 1909 Tex. Crim. App. LEXIS 536

• Court: Court of Criminal Appeals of Texas
• Decided: March 3, 1909
• Docket: No. 24.
• Status: Published

Opinions

DAVIDSON, Presiding Judge.

—Appellant was allotted a term of five years in the penitentiary upon a conviction of murder in the second degree.

The evidence shows that he killed Light R. Cheney. The killing occurred near a little store in the village of Peel Town. The deceased had made threats to take the life of appellant. On the morning of the tragedy appellant had an understanding with Russell to go on a visit to MeKinpey. The first understanding was, that appellant was to walk through a near-way to the residence of Russell, or to some designated point to meet him, and accompany him to McKinney. His proposed line of travel would carry him near the residence of the deceased. He called Russell over the phone and changed their meeting place to the little store where the tragedy occurred. This change was made to avoid a possible meeting with deceased. It seems from the testimony that the deceased, being on the same telephone line, overheard this conversation and immediately hitched his horse to his buggy, and went to the little store, taking his shotgun with him. Arriving at or near the store he left his horse unhitched a few steps south of the front end of the store, alighted from the buggy and went into the store and inquired if appellant had been there. Being informed in the negative he went out upon the gallery, but soon went back into the store and made the purchase of some tobacco. When this was done, he returned to the gallery and sat down upon the outer edge of it with his feet upon the ground. Mot long after this appellant entered the store and seeing the deceased upon the gallery, walked to the door and asked him if he had said he was going to kill him on sight. According to the testimony of Russell, deceased started to his buggy and arriving there reached for his gun. As he did so, appellant fired and deceased fell, dropping his gun. Immediately upon falling, he got on his all-fours, and secured the gun and in this position, or as he was straightening up, appellant fired the second shot. Deceased ran down the road some distance and fell. Two ladies by the name of Rutledge testify in the case. One of them was in the store and waited upon the deceased when he bought the tobacco and made the inquiry as to whether or not appellant had been to the store that morning. The other was in the back part of their residence, some distance to the rear of the store, ironing, and upon hearing the first shot, went to the front of the house and saw deceased going down by the side of the fence or down the road; and, as far as she could tell, with his right hand hanging down by his side; at least, her testimony goes to show that she did not see him with the gun, and that it was about this time the second shot was fired. This, while brief, is, perhaps a sufficient statement of the evidence to review the questions thought necessary for discussion.

1. The application for continuance is not discussed in view of the disposition of the case upon other matters. The absent witnesses can be secured upon another -trial.

2. The court gave the stereotyped definition of malice, and murder in the first and second degrees. In regard to that portion of the charge on murder in the second degree which defines mitigation, excuse or justification, the court gave this charge: “Every person is permitted by law to defend himself against any unlawful attack, reasonably threatening injury to his person, and is justified in using all the necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one’s person against any unlawful and violent attack, made in such a manner as to produce a reasonable expectation or fear of death, or some serious bodily injury.” Exception is reserved to this because it confined the justification, or self-defense theory, in connection with the charge on murder in the second degree, to, first, an unlawful attack, and, second, that that unlawful attack must be a violent one. We are of opinion that this criticism is correct. There had been no real attack made. The deceased, under the facts, when he saw appellant at the store immediately started to his buggy for the purpose of securing a gun, and as he reached for the gun or as he got hold of it, appellant fired. These 'acts had not reached the point of a real or violent attack. Of course, appellant had reason to believe from these actions of the deceased that he intended to get the gun for the purpose of using it upon him, but it was more apparent than real, legally speaking. In the following subdivision of the charge, the court in applying the law to murder in the second degree, also limited the defensive theory to an actual attack as he did in applying the law of manslaughter. As we understand the facts, the question of actual danger was not the criterion of the defensive theory, but it was one of apparent danger. The samp, criticism is urged, and we think correctly so, in regard to subdivision twenty-one where the court undertakes to define the danger as being real and actual. The law of apparent danger was the law óf this case.

3. The twenty-fourth subdivision of the charge is criticised for several reasons. This charge submitted the theory of abandonment of the difficulty, and omitted to charge the jury in that connection as to the right of appellant to continue to shoot as long as danger appeared to him to be present. In said subdivision the court charged the jury that if they should find from the evidence that prior to the killing, deceased had made threats against the life of appellant, and that he used words or did acts which indicated a purpose or intention to carry such threats into execution; and if they should find that deceased started to his buggy for the purpose of securing his gun and that he got the gun; and they should further find that it appeared to appellant that deceased was about to attack him, and he (defendant) shot and wounded deceased, and the jury should so find that said wound was not mortal, and should further find that when deceased was first wounded, he dropped his gun and abandoned the difficulty in good faith and commenced to retreat; and further that, after- deceased had dropped his gun, abandoned the difficulty in good faith, and began to retreat, that defendant shot a second time and thereby killed deceased; and they should further believe from the evidence that when he shot the deceased the second time, it reasonably appeared to him that deceased had dropped his gun and had abandoned the difficulty in good faith and had begun to retreat; and it further appeared to defendant, that he was in no actual or apparent danger, then he, defendant, was not justified in shooting the second time under this state of circumstances, but if he did so shoot under the circumstances above mentioned that he would be guilty of manslaughter. The testimony is very slight in regard to abandonment, even if the question was suggested by the facts. If the question was suggested by the testimony it was from that given by one of the ladies by the name of Rutledge who testified that she saw defendant moving down the road with his right hand down by his side just prior to the second shot. All the testimony shows that deceased’s gun was lying in the road south of the house; that it had been taken from the buggy, or at least, it had gotten out of the buggy in some way and was on the ground. It may be seriously questioned whether the doctrine of abandonment was suggested by the testimony, but if it was, then appellant’s criticism of the charge to the effect that the court should have instructed the jury, under the testimony, that if deceased got the gun for the purpose of shooting him (appellant) and that his life was in danger, that he had the right to shoot and continue to shoot until the danger had passed. The close proximity of the facts, the rapidity of the whole transaction, from beginning to end, makes the question of abandonment with the omission of the other phase of the charge, to wit, appellant’s right to shoot and continue to shoot until the danger was past, very harmful. The two shots were very close together. If deceased had gotten his gun from his buggy or was in the act of getting it when the first shot was fired, and this caused him to drop his gun when he fell, and in getting up he reached for the gun, appellant’s right to shoot was certainly unabridged. If the deceased, in getting up, was in the act of leaving the gun, the occurrences were so close together that the charge on abandonment, without the charge omitted, was of serious consequence. Unquestionably the omission by the court to charge with reference to the right of appellant to continue to shoot was harmful under the facts in the record. The omission of this charge, viewed in the light of the charge on abandonment, made said omission more harmful. In regard to the abandonment of the difficulty, we would suggest upon another trial, if the facts are developed as in this record, such a charge should not be given.

4. There was reserved an exception to the manner of interrogating the witness Eussell and using some notes of the testimony of Eussell before the grand jury of which appellant complained. When this occurred, and the testimony before the grand jury was in the hands of the prosecuting attorney and was being used by him for the purpose of laying a predicate to contradict the testimony of Eussell, appellant’s counsel requested that they be permitted to use the same book in which the notes were taken, to the end that they might cross-examine the witness. This was more than a mere private memorandum of counsel, but was a record and statement signed by the witness. This was refused at the time. The court, however, qualifies this by stating that subsequently when the witness was recalled he was not asked about it. If this matter should occur upon another trial, it is but just and fair that appellant’s counsel should have access to the book in developing the matter inquired about by the prosecuting attorney.

5. There was also some rather indefinite evidence introduced from one witness in regard to a conversation he had with appellant in regard to a telephone line, and in which the State sought to prove a sort of an indirect general threat in regard to parties using the telephone line, growing out of something that was not exactly to appellant’s liking. We are of opinion, as the matter is presented that the exception was well taken. The threat, if any, was very indirect and did not name the deceased. If this testimony is sought to be used upon another trial as criminative of appellant, the connection should be made plainer; at least, it should be made sufficiently plain to include the deceased within the purview of appellant’s statements.

6. The matters mentioned in regard to the last two exceptions are rather remote and not of great significance but should be avoided upon another trial, unless they are of more consequence than exhibited by this record.

The judgment is reversed and the cause is remanded.

Reversed and remanded.