Guerrero v. State

47 S.W. 655, 39 Tex. Crim. 662, 1898 Tex. Crim. App. LEXIS 193

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 1898
• Docket: No. 1822.
• Status: Published

Opinion

HEHDEESOH, Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

Appellant objected to the following charge of the court: “And the law further declares that, if either of the combatants in a duel be killed, the survivor shall be deemed guilty of murder in the first degree, and be punished accordingly.” There was some testimony in this case indicating a mutual combat, but we fail to find testimony showing a duel, as defined by article 715 of the Penal Code. We also refer to the oath of office re quired by the Constitution, in this connection. The most that can be said, as suggestive of a duel, as shown by the record, is that the deceased insisted in the morning, when he and the defendant had an altercation, that they step aside and fight. Later in the day he met the appellant, and then suggested to him that they retire to the suburbs of the town of Laredo and settle the matter. Defendant did not want to go, but went along, protesting that he did not want to fight; that he had a family. They went off by themselves, and how the killing occurred, except from the testimony of appellant himself, is only gathered from circumstances. We believe that the testimony does not show that prearrangement to fight with deadly weapons which would constitute a duel, and that the court erred in giving the charge.

Appellant also insists that the court committed an error in failing to charge on murder in the second degree and on manslaughter. The record presents a very meager statement of fact?, but it appears that the court should have given a charge on murder in the second degree, and probably on manslaughter. The court gave a charge on murder in the first degree, and a charge on self-defense. The homicide occurred in a secluded portion of the suburbs of Laredo. No eye-witnesses saw it, except appellant. His testimony raises self-defense, and the State relies exclusively on circumstantial evidence as to how the fight began. Appellant in the struggle was severely wounded, being shot through with a pistol which deceased is shown to have had. Deceased was shown to be the aggressor in all the altercations which had occurred between them, and in the invitations to go out and settle it. The State’s testimony shows that appellant protested against fighting, but followed along. He was not equally armed with the deceased, deceased having a pistol, and defendant only a knife,—the character of the knife not being disclosed. If defendant was following along, not for the purpose of engaging in the conflict with deadly weapons, and deceased set upon him and shot him, then appellant had a right to defend himself, and to use his knife; and thus his right of self-defense would be complete. If appellant was following deceased, not for the purpose of engaging in a deadly conflict, and was suddenly shot by deceased, and he then succeeded in wrenching his pistol from him, which he is shown to have had when first seen by the State’s witnesses, and then, not in his necessary self-defense, stabbed and killed deceased, it might have been murder in the second degree, or manslaughter. If appellant, not desiring to fight deceased, was goaded by his repeated aggressions and invitations to fight, and at length agreed to fight him, and followed him for that purpose, but such intent was not formed when his mind was cool and deliberate, but existed because of the aggressions and insults of deceased, and so engaged in a mutual combat with the deceased, and slew him, it would not be murder with a sedate and deliberate mind, but would be murder upon implied malice. At least, under the circumstances of this case, the jury should have been afforded the right to pass upon this question; and the court should have not restricted them to murder in the first degree on the one hand, or self-defense on the other. A ease can rarely arise where a court would he required to charge self-defense in which he would not also be required to give a charge on murder in the second degree. We believe the court erred in failing to give a charge on murder in the second degree. The court gave a charge on murder in the first degree, which does not seem to be excepted to, which appears to eliminate the question of malice altogether; and we simply call attention to this in view of another trial of the case. For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Huet, Presiding Judge, absent.