Mitchell v. State

41 S.W. 816, 38 Tex. Crim. 170, 1897 Tex. Crim. App. LEXIS 198

• Court: Court of Criminal Appeals of Texas
• Decided: June 16, 1897
• Docket: No. 1580.
• Status: Published

Opinion

HENDEESOH, Judge.

Appellant was convicted of murder in the second degree, and his punishment fixed at a term of five years in the penitentiary; hence this appeal.

Appellant assigns as error the action of the court in permitting the witness Eiley Green to exhibit to the jury the coat and vest and shirt worn by' the deceased at the time he was shot, and testify in reference thereto, because, he says, "the same could not be made a part of the record.’’ This was made a part of the record. The condition of said garments was testified about before the jury. See Hart v. State, 15 Texas Crim. App., 202; Jackson v. State, 28 Texas Crim. App., 373.

Appellant complains that the court committed an error in permitting the witness Eiley Green to testify that Claude Yeager came down to his stable, or near his stable, the morning of the difficulty, and challenged John Henley to come up the street, and have a fight, on the ground that this was hearsay. It appears that on the morning of the difficulty, and just prior thereto, a fight was made up between the witness Yeager and Henley, Yeager representing the Mitchell faction and Henley representing the Green faction. This was the beginning of the difficulty in which the deceased lost his lift. It was the occasion of deceased and defendant being present at the time the homicide occurred. It was a part and parcel of the res gestae, and, in our opinion, was admissible. The cases referred to by appellant have no application.

The objection made by appellant to the testimony of Pruitt that he knew Bill Mitchell, a brother of defendant, and that he might have heard of said Bill Mitchell having had some trouble, was not well'taken. The answer of this witness does not show that he knew of any trouble in which Bill Mitchell, the brother of the appellant, had ever been engaged, and we fail to see how the answer given could possibly injure appellant. Hor was there any error in refusing appellant the right to prove what the witness meant by stating that the Mitchells had “good grit.” We apprehend that under the circumstances in which this word was used the jury had no difficulty in understanding its meaning, to wit, as used in the dictionaries, “to indicate firmness of mind, courage, spunk.” See Webst. Diet.

The witness Lacy did not show that he was an expert in the knowledge of gunshot wounds, and there was no error in rejecting his testimony as to the appearance of the wounds on the body of the deceased.

Appellant complains that after the State had proved by John Pierce that he had not talked to Tom Horman, of Hunt County, about getting the defendant discharged from the employ of Harrell & Bro., the court erred in not permitting him to prove by said Horman that Pierce did talk to him on said subject. What may have occurred between the witness Pierce and Tom Horman about this matter, it occurs to us, was purely hearsay, unless it was intended to prove that deceased procured Tom Horman to endeavor to secure the removal of defendant from the employ of Harrell. This the bill does not undertake to show. It shows that the witness denied having a conversation with Tom Horman, of Hunt County, in regard to having Harrell & Bro. release defendant from their employment. All that was proposed to be proved in said conversation was that the witness said to Tom Horman, of Hunt County, “that Tom Horman of Collin had asked him to get defendant discharged from the employ of Harrell & Bro.” It seems from the bill itself that the witness admitted that Horman of Collin County had suggested the matter to him. The only contradiction involved was whether or not the witness Pierce had ever had a conversation in regard to said matter with Tom Horman of Hunt County. It occurs to us, as presented by this bill, that the matter was hearsa3r, and was purely collateral.

On the trial of said case, appellant’s eighth bill of exceptions shows “that he introduced H. K. Harrell as a witness, and asked him if he had ever had any talk with John Pierce in which said Pierce said anything to him about discharging defendant from the employ of H. K. Harrell & Bro., and, if so, what he said, expecting the witness to answer that after Charley Green was shot, and after defendant had surrendered, and gone to work for him again, that said John Pierce came to witness, and asked him to discharge defendant from his employ, and advised him to do so ■on the ground that it would injure the business of said Harrell if defendant continued to work for him.” This was excluded, and a bill of exceptions was reserved. How, it would have been perfectly competent, in order to show that the witness John Pierce was prejudiced against appellant, that he endeavored to have his employers discharge him, but the witness Pierce should have been first asked about this matter, to afford him an opportunity of denying or explaining the same. His explanation might have been such as to have obviated the necessity of any contradictory evidence. If he had denied the same, then, as showing prejudice on his part against appellant, it would have been competent to have contradicted him upon this collateral matter. The bill fails to show that J ohn Pierce was asked any questions in regar! to this matter, or that any predicate was laid for its introduction; and it fails to show that the purpose and object of this testimony was to show prejudice on the part of .Pierce. If he had been asked as to this prejudice, he might have admitted that he entertained such prejudice, and there would have been no necessity for any further investigation. If he had denied such prejudice, and this matter had been called to his attention, he might have admitted suggesting that appellant be discharged, but on such grounds as would have entirely relieved the case of any prejudice on his part. The bill as presented does not show any error on the part of the court in excluding this evidence.

Appellant contends that the court erred in its charge to the jury in failing to charge on the law of manslaughter, because the evidence raised that issue. “He insists that conditions and circumstances which are capable of creating sudden passion, and render the mind incapable of cool reflection, might constitute adequate cause so as to reduce homicide to manslaughter, and he urges that the circumstances existed in this case. He furthermore urges that the jury may have believed that the appellant wrongfully interfered in the fight that was going on between Bishop, Thomas, and Eiley Green, but still may have believed that Charley Green drew his pistol on appellant before appellant fired, or made any demonstration to fire at him, and that the act of Charley Green in presenting his pistol at appellant was sufficient to arouse in the mind of appellant such terror as to render his mind incapable of cool reflection, thereby producing adequate cause for appellant to shoot said Charley Green, and still they may have held in doing so he was not justified, by reason of his ■wrongfully engaging in the controversy between the other parties, under which state of case the case would have been manslaughter, and not murder in the second degree.” If appellant wrongfully interfered in the fight between Eiley Green and Thomas on the one side and Bishop on the other, evidently he did so as an original conspirator with Bishop, Yeager, and others on the one side against the Greens and Henley and Thomas and others, on the other side. If the jury believe that he wrongfully entered into said combination, then his offense in killing deceased could not be reduced to manslaughter. If he entered into said difficulty as one of the original conspirators, and if in the progress of the difficulty, and while he was firing at Thomas, he saw Charley Green in the act of firing at him, and he then fired at Charley Green, and killed him, it could not be less than murder in the second degree. In the light of the circumstances presented by the evidence, whenever it is conceded that defendant wrongfully engaged in the fight going on between Biley Green and Thomas on the one side and Bishop on the other, such concession apprehends that there was an understanding beforehand-—that is, before Yeager and Henley engaged in their altercation (which was the occasion of the difficulty); that appellant entered into said fight willingly, and engaged in a contest with deadly weapons, in which he or his adversary might be killed. If appellant did not engage in said fight willingly, but merely happened there, without any understanding that he was to stand by his side in any antici¡Dated difficulty, and if Biley Green and Thomas jumped on Bishop, and got him down, and Bishop was in danger of his life or of serious bodily injury to his person, or it so appeared to the defendant from his standpoint, then he did not engage in said altercation wrongfully; but, if he shot at Thomas under such circumstances, he had a right to shoot at him; and, if deceased turned upon him in the attitude of firing, or, from defendant’s standpoint, apparently about to fire, defendant’s right to fire upon deceased would be unimpaired. Such act on his part could not possibly be manslaughter, but would be in self-defense. The charge of the court on self-defense gave defendant the absolute right of self-defense under such conditions. We can not conceive that the court would have been justified in giving a charge on manslaughter based on appellant’s wrongful interference in the fight between Bishop on the one side and Thomas and Green on the other. We think such a charge would have been erroneous. Counsel, in discussing the case, admit that if this question is looked to in the light of the testimony of the defendant, there is no manslaughter in the case, but insist that we are not circumscribed by his testimony alone, but there may be other facts in the case that would require the court to give a. charge on manslaughter. There may be such cases, but in this case, however, if we look only to the testimony of the defendant, -there is nothing in it that would authorize a charge on manslaughter. Looking to his evidence, the court would not have been justified in giving manslaughter, as it only raised the issue of self-defense, and, if the court had given a charge on manslaughter, he might have had just cause of complaint, because such a charge would not have been from his standpoint. If we look beyond his testimony to that of other witnesses for the defense who testified as to the difficulty between Bishop on the one side, who was appellant’s friend, and Biley Green and Thomas on the other, still we fail to see how the court was required to give a charge on manslaughter. From their testimony appellant was either justified in engaging in the difficulty, and so not wrongfully entering, into it, or was justified during the progress of the difficulty in shooting Charley Green. If he entered into said difficulty not justifiably, but wrongfully, and shot Charley Green in the progress thereof, at the least he would be guilty of murder in the second degree, and not manslaughter. There is nothing in their testimony showing conditions that would produce adequate cause to engender passion sufficient to render appellant’s mind incapable of cool reflection. Their testimony fails to make any adequate cause.

Appellant contends that the court committed an error in charging on mutual combat, insisting there is no testimony in the case raising the issue. On this subject the charge of the court was as follows: “The doctrine of self-defense, hereinbefore set out, applies to a defensive, and not an offensive, act, and is limited to necessity, or apparent necessity, and can not exceed the bounds of mere defense and prevention; and where a person voluntarily engages in a combat, knowing that it may or will probably result in death, or some serious bodily injury that might produce the death, of his adversary or himself, he can non claim to have acted in self-defense. Therefore, if you find that a controversy existed between Bob Mitchell and some of his friends on the one side, and Biley Green and some of his friends on the other side, and that the controversy was about to culminate in a difficulty, and if you further find that the defendant voluntarily made himself a party to the controversy and the difficulty that ensued, knowing that the difficulty would, or might probably, result in death or some serious bodily injury that might produce death of some one or more persons engaged in the difficulty, and if you further find that the defendant shot and killed Charley Green in the progress of the difficulty, then the doctrine of self-defense, hereinabove set out, would not apply, and he would not be justifiable, and this would be the ease, no matter to what extremity he may have been reduced in the course of the difficulty.”

We will summarize sufficient of the testimony to indicate the shape of the case which, in our opinion, authorized this charge. A feud had existed for some time in the little town of Celeste, in Hunt County, between two rival livery stables, one owned and run by J. E. Bishop and Bob Mitchell, a brother of the defendant, and the other being owned by Riley Green and Thomas. This feud involved the employes of the two livery stables and others in the town, including the defendant, E. D. Mitchell, and Charley Green (a brother of Riley Green), who lived in Kingston, some three miles distant. The record shows that this rivalry was engendered by opposition in business, and had been progressing for sometime, and reached a crisis about the time the difficulty occurred. On that morning Riley Green had telegraphed to his brother* Charley Green, at Kingston, to come over; and the evidence indicates that after he arrived at Celeste the Green people determined to bring the fight on at the depot, where the rival hacks went to meet the train, about 9 or 10 o’clock. The difficulty was to be brought on by Riley Green making an assault on Bob Mitchell, but it so happened on that particular morning that Bob Mitchell was sick, and did not come to the train. The evidence indicates that the owners of the other stable, after becoming aware of what was going on, prepared for the fray. Early that morning Bob Mitchell and Yeager attacked John Henley, an em- . ploye of the Green stable, while he was up in town. They cursed and abused him. It seems in that connection defendant appeared on the scene, and told the boys to let Henley alone; that they had cursed him enough. Subsequently Henley met Yeager, and challenged him to settle it that morning by fighting it out, and the parties agreed to meet in front of Short’s corner and have a fight. Henley went to the Green stable and got his crowd; and Yeager went by the store where the defendant was, spoke with him, then went on down to the Mitchell stable, got the balance of -the boys, and both parties met at Short’s corner. There Mitchell and Henley confronted each other for a short time. Some suggestion was made by some of the Mitchell party that Yeager was too small to fight Henley, and an altercation ensued between the Mitchells and their friends on the one side and the Greens on the other. Some words passed between them, in which both defendant and deceased participated. During the altercation, while Henley and Yeager were confronting each other, defendant stated to Biley Green that he had heard that he was going to whip Bob, and that he told him that Bob was sick, but he would take his place. Some of the witnesses indicate that some words passed here between defendant and deceased. The testimony shows that the parties on both sides were armed, and ready for a fight, and were willing to fight. It appears that from some cause the difficulty did not come off between Yeager and Henley, Mitchell suggesting that Yeager was not big enough to fight Henley. At this juncture Bishop stated to Biley Green that he understood that he had said that he was the son of a bitch that had whipped his negroes, and run them off from his stable while he was gone. Biley Green at first denied this, and Bishop said he could prove it by Bob Helson, one of the Mitchell party; and Helson spoke up, and said that Biley Green had told him that. Green then admitted he had said it, and Bishop told him that anybody that said he had whipped his negroes and run them off was a damn lying son of a bitch. About 'the time he made this remark, Thomas struck him, and Bishop began to draw his pistol. Thomas struck him again, and knocked him down. About this time Bishop’s pistol fired, and Biley Green jumped in and engaged in the fight, either to take the pistol from Bishop or to assist Thomas. According to some of the witnesses, the defendant then drew his pistol and fired at Thomas twice.

The State’s witnesses show that Charley Green was standing off to one side, about ten feet away from the parties fighting, and malting no demonstration; that after defendant had fired twice at Thomas he then raised his pistol, and fired at Charley Green, whose back or side was to him, two or three times. About this time Charley Green pulled his pistol. Defendant ran, and deceased pursued him some little distance, firing three shots at him. Defendant and some of his witnesses stated that after he had fired two or three shots at Thomas, the deceased, Charley Green, turned on the defendant with his pistol in his hand, and that defendant then shot at him, and he kept on turning and got nearly around, and he fired the second time at him; that he tried to shoot the third time, but his pistol snapped, and he then ran down the sidewalk, and the deceased fired two or three shots at him.

Some of the defendant’s witnesses testified that while Thomas and Riley Green had J. E. Bishop down, beating him, and his pistol was firing, that the deceased fired two shots in the crowd, evidently for the purpose of killing Bishop; and about that time turned toward the defendant with his pistol, and fired at defendant about the same time that defendant fired at him.

The record abundantly shows that bad blood had existed between these two factions for a considerable length of time; that the parties on that particular morning were both looking for the difficulty. The deceased and his friends expected to bring it on at the depot, and defendant’s friends unquestionably made an attack on John Henley on the same morning; and subsequently the fight was made up between the factions to come off in front of Short’s corner. All of the parties on both sides, except Bob Mitchell, who was sick, appear to have been on hand, and armed for the occasion. True, appellant does not say that Yeager told him what was up, but it is a little singular that Yeager happened in the store where defendant stayed, and showed himself to the defendant, just prior to his going to the stable for the other boys on his side; and when he came back with the other boys, and proceeded to Short’s corner, it seems that appellant was on hand. He explains that he had his pistol because he expected to go to a place known as Merit, to a public school entertainment; but he was not then on his way to Merit, but was at the particular place, and armed with his pistol. He stated several times that he understood the parties intended to whip Bob Mitchell that morning, and that he was there to stand in Bob’s shoes; that Bob was sick; and his acts and conduct all indicate that he was there ready to engage in the fight if it should come off. Hnder such a state of case, it occurs to us that the difficulty which ensued was a mutual combat, and the court properly gave a charge on that phase of the case.

In our opinion, the law of imperfect self-defense predicated on mutual combat did not arise in this case. If appellant engaged in the combat at all, it was with felonious intent; it was with a deadly weapon, and under circumstances which indicate that persons on one or both sides in the difficulty might be killed. The court’s charge on self defense was predicated solely on the idea that appellant did not go to the scene of the difficulty and was not there for the purpose of engaging in a mutual combat, and that, if there was no mutual combat in the case, and deceased fired at the defendant first, or was making some hostile demonstration indicating a purpose to kill, and defendant then fired on deceased, and killed him, that he would be perfectly justifiable in his action. This was the converse of the proposition presenting self-defense, if there was no mutual combat in the case.

[Hote.—The motion of appellant for a rehearing was overruled December 22, 1897, without a written opinion.—Reporter.]

Hor,- in onr opinion, was there any error in the failure of the court to instruct the jury that, if deceased attempted to take the life of Bishop, defendant would have the right to slay him. True, some of the defendant’s witnesses state that the deceased had fired or was in the act of firing at Bishop when defendant shot him. But, viewing the case from the defendant’s standpoint, whether this, be true or false could not have affected him. He did not see this. There is no pretense from his standpoint that he fired on deceased to keep him from killing Bishop. He fired at deceased solely, according to his testimony, to prevent deceased from killing him.

Appellant complains because the court in its charge limited his right of self-defense to an assault on him with intent to kill him, made by deceased, or to some act done by deceased, showing evidently that he intended to kill defendant. The vice suggested by this charge is that, if deceased was doing some act which indicated that his purpose was to inflict serious bodily injury on defendant, his right of self-defense against such an act would be equally perfect. If there was any testimony in the case showing that deceased, if he made an assault on the defendant, had a less purpose than an intent to take his life, the contention would have great force; but there is no such testimony in this case. If deceased was in the act of making an assault on the defendant at all, it was for the purpose of taking his life. He was then about to shoot him with a pistol, and we fail to understand how the charge in question could have injured the rights of appellant.

Appellant further complains that the court limited his right of self-defense to actual necessity. Strictly speaking, the evidence shows, if anything, an actual, and not an apparent, danger; but the court instructed the jury to regard the circumstances from the defendant’s standpoint, and, furthermore, that the doctrine of self-defense is limited to necessity or apparent necessity. This, we think, was sufficient.

In our opinion, there was nothing in appellant’s motion for a new trial. Even if it be conceded that some one else fired a shot at deceased, it would not alter the result. The affidavit of newly-discovered evidence is too indefinite, and does not attempt to show who may have fired such other shot. There being no errors in the record, the judgment 'is affirmed.

Affirmed.