Eanes v. State

10 Tex. Ct. App. 421

• Court: Court of Appeals of Texas
• Decided: July 1, 1881
• Status: Published

Opinion

White, P. J.

On an indictment for the murder of one C. D. McMillan, alleged to have been committed in Travis county on the 19th day of February, 1880, appellants were tried on the 9th day of July, 1880, in the District Court, and by verdict and judgment were found guilty of murder in the first degree,— the punishment as to William Fanes being affixed at death by hanging, and that of Eobert Banes at imprisonment for life in the State penitentiary.

Over and above its importance on account of the gravity of the penalties imposed, the case involves many interesting features which might, if necessary, open up a wide field for discussion. But in connection with the conclusions which have forced themselves upon our minds with irresistible conviction upon a mature consideration of the record, we propose, in our endeavors to arrive at a true and proper disposition of the case as presented on this appeal, only to discuss those questions which have occurred to us as embracing matters of vital importance to the real issues involved. Preliminary to such discussion it may not be amiss to state briefly, but in substance, the facts essential to the elucidation of these questions.

In the months of November or December, 1878, the deceased and his family moved to the neighborhood of the family of the Eaneses,—that is, of the father of these appellants,—and the two families resided within about one hundred yards of each other for some six weeks or two months. An intimacy soon sprang up between the members of the respective families, which soon ripened into the warmest friendship, especially between Miss Annie Banes, sister of appellants, and Mrs. McMillan, the wife of deceased; Miss Banes frequently visiting and staying at the house of M&Millan, waiting upon, nursing, and ministering to Mrs. McMillan, who was at the time sick. The friendship thus formed continued after the removal of the McMillans to another place, some ten miles distant, where Miss Banes, during the months of April, May and June, spent days and weeks at their house. In January, 1880, McMillan came after Miss Banes and took her from home to his house, on an invitation to pay his wife a. visit. About the latter part of January, McMillan came with her in a wagon to the city of Austin, and left her at the house of a friend of hers. Early the next morning she left, saying she was going to an uncle’s. On the 10th of February following, her father inquired for her of Mrs. McMillan, and learned for the first time that she was not there, and that she was missing and her whereabouts unknown. Search was immediately made for her, and appears to have been prosecuted without success until the 18th day of February, when her brother-in-law, Maurice Moore, having traced her to Round Rock, found her there, and brought her back with him, to his house, on the evening of that day. The next morning she met her two brothers, these appellants, and told them that McMillan had committed a rape upon her, in consequence of which she was about to become a mother. This was the first time she had ever disclosed these circumstances to any of her family. Defendants came to the city of Austin, and about one o’clock went to the house of McMillan, where they met his wife in a friendly manner, and had some conversation with her in regard to their sister, who, they led her to believe, had not yet been found. McMillan was not at home, and they said they wished to see him and left between one and two o’clock, saying they would return. About an hour afterwards they did return, and found McMillan, his wife and little daughter, at table, eating dinner. Wm. Eanes began to talk to McMillan about his sister’s not being found, and sptike about a trunk which she had gotten from Mrs. McMillan before her departure. The color and description of the trunk was spoken of, when Mrs. McMillan said there was a trunk in the next room of exactly the same color, and McMillan and William Eanes got up and went into the adjoining room to see it. No word appears to have been spoken after they entered the other room, but almost instantaneously a shot was fired, and McMillan came running back into the room which they had just left, followed by William Eanes, who fired upon him until he fell a lifeless corpse at the feet of his wife. During the shooting neither party spoke. After McMillan fell, the defendants went out of the house, William Eanes pronouncing the single word, sister.”

We have thus briefly endeavored to present the leading features of the testimony as exhibited in the record. Most, if not all the facts, as we have detailed them, are undisputed and uncontradicted. In connection with these facts, the principal question for our determination is the correctness and sufficiency of the charge given by the court to the jury, as the law of the case. No complaint is urged to the charge so far as it relates to murder of the first and second degrees, except as to the manner of stating the rule of reasonable doubt when sought to be applied to the grade of offense; which objection will be noticed hereafter in another connection.

Upon manslaughter the charge is partly an almost literal copy of the several articles 593, 594, 595, 596, 598 and 602 of the Penal Code. The pertinency and relevancy of a charge upon manslaughter was called for by the facts in evidence which are stated above,—one ground, and the chief one, of the defense being that defendants were not, to say the least of it, guilty of any higher crime, their sister having informed them only on the morning before the killing, of the wrong done her by deceased, and the killing having taken place a few hours later, at noon, and upon their first meeting with the deceased after receiving such information.

The general rules with regard to ordinary cases of manslaughter are modified necessarily by our statute in permitting this character of defense. It is expressly provided that “insulting words or conduct of the person killed towards a female relative of the party guilty of the homicide ” (Penal Code, art. 597, subdiv. 4) shall be deemed an adequate cause to reduce a homicide from murder to manslaughter. Not only so, but the statute further provides that such cause shall be deemed sufficient if it is made to appear “that the killing took place immediately upon the happening of the insulting conduct or the uttering of the insulting words, or so soon thereafter as the party hilling may meet with the person hilled, after having been informed of such insultsPenal Code, art. 598. Thus, it will be seen that one of the principal ingredients or elements of ordinary manslaughter, viz.: ‘ ‘ that the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation ” (Penal Code, art. 594), is not applicable to a case where the insulting words or conduct were not indulged in in the presence of the slayer, for he may kill on the first meeting after learning that the provocation, of which he personally knew nothing, had been committed. Up to the time of this first meeting the law prescribes no limit for the subsidence of the passion suppose 1 to be engendered by the information received. If the killing takes place on the first meeting, then it is true in this, as in all other cases, that, in order to reduce the offense to manslaughter, it is necessary, not only that the adequate cause (insulting words and conduct) existed to produce “ anger, rage, resentment or terror, in a person of ordinary temper sufficient to render the mind incapable of cool reflection” (Penal Code, art. 594, subdiv. 3), but such state of mind must actually exist at the time of the commission of the offense. Penal Code, art. 602.

In such state of case the material questions to be solved are:

1. Were there insulting words or conduct on the part of the person killed towards a female relative of the slayer ?

2. Was that the real cause which provoked and induced the killing ?

3. Did the killing take place as soon as the party killing met with the person killed, after having been informed of the insult ?

4. At the time of the killing was the slayer laboring under a degree of anger, rage, resentment or terror, such as would commonly, in a person of ordinary temper, render the mind incapable of cool reflection ?

If each and all these questions can be answered affirmatively by the jury, then the accused would not, and should not in law, be found guilty of a higher crime than manslaughter. Pertinent and subordinate to, as well as directly and intimately connected with, these leading questions, are others of no less importance which should be explained, so as to be fully comprehended by the jury. As, for instance, that it is not necessary that they, the jury, should know of a verity that the adequate cause which induced the killing existed as a fact, provided that the party killing believed it and acted upon it as such. A mistake may exist and yet the guilt of the accused must depend, in all mistakes of fact, not upon the existence or non-existence of the fact itself, but upon the circumstances as they appeared to and were understood by him.

Again, the jury should not be left in doubt as to the character of passion aroused by the provocation. It may be “anger,” or “rage,” or “sudden resentment;” not a combination of all. “Anger is a violent passion of the mind excited by a real or supposed injury, or by an injury offered to a relative or friend.” It is not necessarily rage, nor transport of passion, nor delirium, though it may be inflamed into such conditions. (Webster’s Dictionary.) These are but higher, and more demonstrative and uncontrollable types of its existence. It too often happens that the uneducated mind will confound the cause with the higher degrees, and require that the same external exhibitions shall indicate its presence. Such is not the fact. Anger may exist without any violent ebullition of passion, or even outward expression, and yet to such an extent as to render the mind incapable of cool reflection. It may present all “ the torrent’s smoothness ere it dash below,” and its indicia are as varied as are the varied faces and dispositions of men.

Again, it is necessary that the jury should know and understand what, in law, is meant by and designated as “ cooling time,”—that is, time for the mind to become so calm and sedate, as that it is supposed to contemplate, comprehend, and coolly act with reference to the consequences likely to ensue.

These questions have been so fully and clearly discussed in Maher v. The People, 10 Mich. 213, and the principles of law governing them enunciated with such clearness and precision, that we cannot better express our views of the law than we find them declared in that opinion. That court, Judge Christiancy delivering the opinion, says: “To what extent the passions must be aroused and the dominion of reason disturbed, to reduce the offense from murder to , manslaughter, the cases are by, no means agreed; and any rule which would embrace all the cases that have been decided in reference to this point would come very near obliterating, if it did not entirely obliterate, all distinctions between murder and manslaughter in such cases. We must, therefore, endeavor to discover the principle upon which the question is to be determined. It will not do to hold that reason should be entirely dethroned or overpowered by passion so as to destroy intelligent volition. Such a degree of mental disturbance would be equivalent to utter insanity, and, if the result of provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense,—as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty that the act can be held criminal. * * * The principle involved in the question, and which I think clearly deducible from the majority of well considered cases, would seem to suggest, as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men of fair average disposition liable to act rashly or without due deliberation or reflection, and from passion rather than judgment. To the question what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide committed under its influence the character of manslaughter, on principle the answer as a general rule must be anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them; not such provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation in every case be held sufficient or reasonable because such a state of excitement has followed from it; for then, by habitual, and long-continued indulgence in evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which in itself constitutes an aggravation both in morals and law. In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard; unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind, or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. * * *

‘‘ The same principles which govern as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter; or, in other words, to the question of ‘ cooling time.’ This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the .provocation, the extent to which the passions have been aroused, and the fact whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the court as a rule of law within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the very principle on which prove c ition and passion are allowed to be shown at all in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular cases, and in a majority of cases is one peculiarly within the province of the jury to determine.” See also State v. Holme, 54 Mo. 154.

We have been led to make this extended extract from Maher v. The People because, in our opinion, it is the clearest exposition of manslaughter we have seen, and is in ¡perfect harmony with our own views of the proper construction to be given to our own statutes upon the subject.

If the charge of the court in the case at bar is subjected to the test of the principles and rules above enunciated, we are clearly of opinion that it should be held insufficient in law. It instructed the jury that “the provocation which produced the passion must have arisen at the time of the commission of the offense; ” which, as we have seen, is not the law where insulting words and conduct are the provocation, and the provocation occurs in the absence of the slayer. It was further calculated to impress upon the minds of the jury that there could be no anger sufficient in law to render the mind incapable of cool reflection, unless evidenced by “sudden transports of passion.” And it doubtless misled the jury as to cooling time by not, under the peculiar circumstances of this case, directing their minds specially to the fact whether the killing occurred upon the first meeting after the defendants had been informed of the provocation, and whether the tendency of the provocation at that time was such as would be liable, to produce in a person of ordinary temper a degree of anger sufficient to render the mind incapable of cool reflection. The question was not whether there was time to cool from, the time their sister informed them in the morning of the wrongs that had been perpetrated upon her, but did the anger exist at the time of the meeting and their acting on the provocation?

In another portion of the charge the followinglanguage is used: “ I charge you that there is no evidence before you that tends to excuse or justify the homicide, nor is there any evidence before you applicable to what the law calls negligent homicide.” We are inclined to the opinion that such a charge, under the peculiar circumstances of this case, if appropriate in any case, was liable to be misconceived by, and to mislead the jury. In Biggs v. State, 29 Ga. 723, it was held excusable or justifiable homicide for one to kill a party who had ravished his sister,—though not the law in this State. At all events the charge is liable to the construction that, if the jury believed the defendants did kill the deceased, then, in no event, could they find them not guilty, but they must find them guilty of either murder in the first or second degree, or of manslaughter. This a court never has the right to do; it is the province of the jury alone, absolutely, to declare whether the accused is guilty or not guilty. In most instances a court is fully warranted in declining to charge upon a grade of offense, or a phase of case, where there is no evidence supporting it, and thereby withdrawing its consideration from the jury (Berry v. State, 8 Texas Ct. App. 515); but it is, to say the least of it, of exceedingly questionable propriety, whether in any case a court is ever warranted in telling a jury that there is no evidence of a lower grade where the offense admits of degrees; and that, too, in such manner as that they may feel it their bounden duty to convict anyhow of one of the higher grades.

Again: on the reasonable doubt the court charged the language of the statute, but added “and the rule of reasonable doubt applies to the grade of offense.” To the legal mind such a charge would doubtless convey a correct idea and be amply sufficient; but to an ordinary jury it would scarcely apprise them of their duty in considering the degree of offense; that is, if they entertained a reasonable doubt of the higher, to let such doubt operate in determining in favor of the lesser degree. “Oftentimes it is of as great and vital importance to a defendant to have the benefit of whatever reasonable doubt may arise in determining the grade and degree of his crime, as in adjudging the general measure of his guilt.” Murray v. State, 1 Texas Ct. App. 417; Davis v. State, 10 Ga. 101; 1 Leading Crim. Cas. (Bennett and Heard) pp. 359, 360.

It only remains for us to notice one other matter appearing of record, which in the way of bills of exception, statements, affidavits, and counter-affidavits, covers fifty-five pages of the transcript. During the closing argument of the county attorney, in commenting upon and deducing inferences from the evidence, which for aught that appears he had the right to do, he was interrupted in a very abrupt manner by the excited protestations of Maurice Moore, to whom he was alluding, and who was a brother-in-law of the defendants, and also indicted in a separate indictment as being an accomplice in the murder. Immediately a younger brother of the defendants rushed upon and struck the county attorney, whilst both defendants attempted to join in the melee, and one of them seized a chair and attempted also to strike with it. Excitement naturally rose instantly to the very highest pitch, and was participated in by the one hundred and fifty or two hundred spectators, who were present in the court room. The proceedings of the trial were stopped, and for a few moments the wildest confusion seems to have prevailed. Moore was ordered to jail by the court, and was taken out by the sheriff. Silence and order were commanded by the officers of the court. After order and quiet were restored, .the court ordered the county attorney to proceed with his argument, and he requested the court, before proceeding, to have the prisoners removed from his rear, remarking that he did not wish to be assassinated. Defendants were removed and counsel resumed his argument under much excitement. He said “he might be assassinated before he got through, but before he would be intimidated by Maurice Moore, in the discharge of his duty, he would see him dead and in hell and follow him there.” At this remark the audience inside and outside the bar applauded by clapping their hands, stamping their feet, and by loud and vociferous cheers of approval. The proceedings of the trial were stopped and there was again great confusion and excitement for some moments. When order was again partially restored the court censured the audience, and remarked that “'if the parties causing this disturbance could be identified they should be fined to the extent of the power of the court,” and that he “felt ashamed, mortified and humiliated, that such a thing should occur while men were on trial for fife.” In resuming, the county attorney again spoke of defendants and their attempt to assassinate him in the court house, to which the defendants through counsel objected, when the court made some remark about the latitude which would be allowed counsel for the State, the substance of which remark is not agreed upon in the two bills of exception. Finally the court told the county attorney that he must confine himself to the evidence.

The rule seems to be now well settled in practice that, “ where the counsel grossly abuses his privilege to the manifest prejudice of the opposing party, it is the duty of the court to stop him there and then. If he fails to do so and the impropriety is gross, it is good ground for a new trial.” Jenkins v. N. C. Ore Dressing Co. 65 N. C. ; Thompson v. State, 43 Texas, 268; Hatch v. State, 8 Texas Ct. App. 418; House v. State, 9 Texas Ct. App. 567; State v. Smith, 1 Amer. Crim. R. (Hawley) 580; Ferguson v. State, id. 582.

Such occurrences in the court house and during a trial for murder must of necessity have their influences upon the jury. Amidst such excitement it is scarcely to be imagined that they would be able to maintain that quiet, calm disposition and frame of mind which should never be diverted from, or for a moment lose sight of the grave and solemn issues they were called to decide. But these appellants and their relatives and friends were the primary cause of all that subsequently occurred. It would be a most dangerous precedent, and one I shall never be willing to sanction, that prisoners on trial for a felony may, by their own unjustifiable and outrageous conduct, by openly violating the law, and assaulting her officers in the very sanctuary of justice, create a state of circumstances which may have .operated to prejudice their rights, and afterwards seek advantage of their own wrong and claim immunity from punishment because in all probability the extent of the punishment might have been affected, if it was not in fact superinduced, by these untoward circumstances. To allow them to do so would simply be to invite a recurrence of such acts and scenes in any and every case where a party was placed upon trial for felony and might not be willing to abide the result..

Such questions, however, should never be brought to this court for revision and adjudication, when, if the proper course is taken, they may be disposed of so promptly, and with so little trouble, in the court below. No effort should have been made to proceed with the trial during the pendency of the excitement. So soon as it reasonably becamp apparent that there was a disturbance, or the likelihood of one, which might affect the quiet of the' trial and perhaps influence its result, if unable to restrain it on the moment, the court of its own motion should have arrested the proceedings and postponed the trial until all such excitement had been entirely allayed, even if it should take days to do so, having in the meantime made all necessary preparation to enforce and maintain proper order and decorum upon the resumption of and during the subsequent progress of the trial. Had the court promptly pursued this plan much of the disturbance and outrageous conduct complained of would doubtless never have occurred.

The judgment of the lower court is reversed and the cause remanded for a new trial.

' Reversed and remanded.