Hardcastle v. State

38 S.W. 186, 36 Tex. Crim. 555, 1896 Tex. Crim. App. LEXIS 214

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1896
• Docket: No. 1393.
• Status: Published

Opinion

HENDERSON, Judge.

Appellant was convicted of murder in the second degree, and given thirty-five years in the penitentiary, and pros ecutes this appeal. The testimony shows, that the killing occurred on the 21st of October, 1895, on Main Street, in the city of Dallas, in front of Branch’s saloon. That the defendant and deceased had been acquainted for some years, and were on friendly terms. Deceased, who was a physician, had been treating the wife of the defendant for some time. Defendant and his wife, on account of some disagreement, separated, and she returned to San Antonio, and procured a divorce from him, which was granted about the 7th of October, 1895. It appears that the wife of defendant, a few days before the homicide, returned to Dallas, and some two days before the killing had an interview with the defendant, in which she informed him that the deceased had debauched her while he was treating her. About noon, or a little thereafter, on the 21st of October (the day of the homicide), defendant and deceased met on Commerce Street, near the Oriental Hotel. Deceased extended his hand, and spoke to defendant, and defendant drew his cane, and assaulted deceased, and struck him several blows. Deceased fled, and defendant pursued him a short distance. At the time, defendant was employed at Branch’s saloon, in the gambling house upstairs. Deceased had his office in the same block in which the saloon was situated, and west of the saloon. That about 7 o’clock p. m. defendant was at Branch’s saloon, in the act of telephoning to some one, when deceased and his brother walked into said saloon. Deceased walked to the rear end of the establishment, where liquors were retailed, his brother remaining in the front part of the house. While there, and waiting for his drink, the testimony shows that he noticed defendant at the telephone, and remarked, “There is the damned son-of-a-bitch who caned me this morning.” Branch, the proprietor, apprehending some trouble, interfered, spoke to the defendant, and told him to turn around; he might get shot in the back; and told deceased that he must not have any difficulty in his house. He then walked out of the saloon with his brother. He testifies that deceased stated “that he would not have any difficulty with him in the store, but he would go outside, and wait until the damned son-of-a-bitch comes out.” Defendant testified that at this juncture he heard the deceased apply the epithet, “damned son-of-a-bitch” to him, but did not hear him state that he would go outside, and wait for him to come out. It appears that after the deceased and his brother passed out of the saloon, the brother of deceased, R. R. Wray, remained in front of Bejano’s restaurant, which adjoins Branch’s saloon on the west, and deceased remarked he would go up the street, and come back in a few minutes, and rejoin his brother. The testimony of the State at this point tends to show that .in a few minutes deceased came back to where his brother was, and walked up in front of him, and, facing him, said: “I believe I will go to the office,” and pulled out his watch to see what the time was, stating he had an engagement between half past 6 and 7. That as he pulled out his watch and looked at it, he turned his head east, and defendant shot him. The deceased fell out in the street off the edge of the sidewalk. Defendant immediately stepped out, and drew his pistol on R. R. Wray, and said, “You damned son-of-a-bitch, I will shoot you too,” and covered him with his pistol, demanding him to give up his gun. Wray told him he did not have any. He then made him throw up his hands, and presently turned around, and walked into the saloon. It is also shown on the part of the State that defendant, shortly after the deceased and his brother left the saloon, came and stood in the front door of Branch’s saloon for some time; that he had a pistol in his right hand, rather under his coat. While he was standing there, some one suggested to him to go along upstairs. Defendant replied, “No, I will wait here for that God damned son-of-a-bitch.” The defendant’s testimony tended to show that after what had occurred in the saloon, while deceased was getting a drink, defendant went upstairs, and armed himself with a pistol, as he apprehended an attack on him by deceased and his brother; that he came down, and stood in the doorway of the saloon, but did not see the parties, and thought they had gone, but looked down in front of Bejano’s, and saw the brother of the deceased standing there. This excited his suspicion, and he did not know where deceased might be, and thought he must be somewhere near. That presently he looked across the street, and saw deceased coming over in his direction. Defendant states, “that just before deceased reached the sidewalk, about ten feet therefrom, he stuck his left hand in his front pants pocket, and held it in that position all the while. He did not have his hand clear down, but, from the size of it, I took it that he had his gun. I did not do anything. I was afraid to move. When I saw this other Wray, I was afraid to move, or make any motion to get away, as I did not know but what I might be murdered. Deceased got on the sidewalk, and walked two or three steps below to his brother and wheels, and comes up abreast between his brother and me, and says: ‘There is the damned son-of-a-bitch, get down there, and defend yourself.’ And then I drew my gun and fired just as I pulled it out. * * * I shot Dr. Wray because I was afraid he was going to kill me. The reason I was afraid was because of the demonstration he made. The talk he had made around there, and other demonstrations he made, showed that he intended to do something. He "made demonstrations enough to make me think he was going to kill me. He says: ‘There is the damned son-of-a-bitch now; get down and defend yourself;’ and he throws his right hand to his hip pocket, his left hand being in his front pants pocket. He put it in his pants pocket just before he got to the outside car track from me, crossing Main street, coming over from the Metropolitan restaurant, and he never removed that hand from his pocket; and when he made this break for his right-hand hip pocket, I thought I was going to get shot, from the demonstration he made, and I drew my pistol and shot.” And defendant further testified: “I did not kill Dr. Wray because of his improper relations with my wife. I would not have killed him on that account after I was divorced. The fact that he mistreated my wife did not enter into the killing at all. The reason I killed him was because I was defending myself. The reason I killed him was because I thought he was endangering my life, and I did it to save my life.”

From this summary of the case we will proceed to discuss the assignments of error which are predicated on the charge of the court. Appellant contends that the following portion of the charge of the court is erroneous, to-wit: “In order to reduce the homicide to manslaughter upon the grounds of insulting words or conduct to a female relative, under the law the killing must result from passion engendered from such insulting words or conduct, and the killing must occur upon the first meeting with the slayer and the insulting party, after the slayer has been informed of such insulting words and conduct, and the issue of manslaughter is eliminated from the case. If you find that the defendant unlawfully killed the deceased, then you are instructed that you can only consider insulting words or conduct by the deceased to the wife of the defendant, if any, in determining whether the homicide was with implied or express malice, as implied and express malice has been heretofore defined in the charge of the court.” It was not necessary for the court to have given this charge to the jury at all. While said charge, as given, is not drawn so as to plainly express the meaning intended, yet we gather from it that the court intended thereby to tell the jury that, while the insulting language or conduct of the deceased towards the wife of the defendant under certain circumstances would be adequate cause to reduce a homicide that would otherwise be murder to manslaughter, yet that such killing must occur on the first meeting between defendant and deceased, after defendant should be informed of such insults; and that, the proof in this case showing without controversy or question that there had been two meetings after such insults, and the communication thereof between deceased and defendant, such insulting language could not be considered as adequate cause. This, as we understand it, when the charge is so construed, is the law, and it was not error for the court to instruct the jury that they could not regard said insulting conduct as adequate cause. Moreover, it was not improper for the court to instruct the jury that said insulting conduct, not being adequate cause, could be looked to by them in determining whether the homicide was committed upon implied or express malice, giving the defendant the benefit of said insulting conduct to reduce the homicide from murder of the first degree to murder of the second degree. Appellant urges that the court committed an error in failing to charge on manslaughter. (It will be borne in mind that no charge was asked by the defendant presenting this issue, and no exception was taken to the failure of the court to charge on same at the time.) The contention of the appellant on this phase of the case is that the circumstances were such as to have required of the court a charge on this subject; that singly they might not be sufficient, but, taken together, they presented the issue of adequate cause. These circumstances, as inanced by defendant, are the previous insults to the wife of the defend ant, and his denunciations of him (defendant) while he was in the saloon. We have already seen that, the parties having met previous to the homicide, the insulting conduct ceased to be adequate cause. When the insults were offered in the saloon, although defendant heard the language of the deceased, he does not seem to have been excited by passion, nor did he then make any assault upon deceased, and the killing occurred some fifteen or twenty minutes thereafter. The law says that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation. Moreover, the defendant, by his own testimony, places this matter beyond question, as his evidence shows that his only purpose in shooting deceased was to save his own life, and that he acted purely in self-defense. Running through his testimony, it is apparent that he was cool and collected at the time; that he was unmoved by passion; that he watched each motion and action of the deceased; saw him with his left hand in his pocket, and thought he had a pistol, yet he did not make a move to draw his own pistol, until, as he says, “deceased should make a better break.” But when he saw him throw his right hand to his hip pocket, he then determined that his life was in danger, and he shot deceased to save himself. The causes suggested by counsel, which they insist would indicate passion, he does not appear to have considered; nor does he appear to have been actuated by passion. The facts alluded to, standing either alone or taken collectively, are too weak, taken in connection with the circumstances of this killing, to have required a charge upon the subject of manslaughter. The court gave a full charge on the subject of self-defense. This was all that the circumstances demanded for him, and this is predicated solely upon his own testimony, which is merely based upon the hip pocket demonstration; and the proof on the part of the State is overwhelming that the deceased made no such demonstration, but took his watch out with his right hand, and was holding it, and speaking to his brother, when he was shot down by the defendant. Moreover, no arms whatever were found upon his person. There were but two issues in the case—that of murder in the first or second degree on the part of the State, and self-defense, based on the testimony of the defendant. Looking to the record in this case, no reasonable jury could doubt for a moment that the defendant, when he armed himself, and went to the door of Branch’s saloon, placed himself there for the purpose of meeting deceased, and then shooting him down without warning, or else voluntarily engaging with him in a conflict with deadly weapons, in which one or both might be killed. The jury appear to have taken the more lenient view of the question, and gave him only murder in the second degree, when they would have been amply justified in finding him guilty of a graver offense. The judgment is affirmed.

[Note.—Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]

Affirmed.