Reinhardt v. State

133 S.W. 265, 60 Tex. Crim. 662, 1910 Tex. Crim. App. LEXIS 583

Opinions

DAVIDSON, Presiding Judge.

Appellant shot and killed Ed Cantrill in the town of Saratoga, in Hardin County, for which the jury allotted him a term of five years in the penitentiary for manslaughter.

The facts disclose that appellant and deceased had been intimate friends for quite a number of years, and also discloses several acts of friendship on the part of appellant towards deceased in getting him employment at different times. It is further disclosed that deceased had corresponded with the wife of appellant when she was a girl, and also that he had boarded in the family of the wife of appellant before her marriage to appellant. Appellant and his wife had been married about six years. The friendly relations had continued between the parties up to the night prior to the homicide. The deceased had married about two years prior to the tragedy, and the relations between the parties had continued up to the night of the 3d of August, the homicide occurring on the evening of the 4th of August. On the night of the 3d of August appellant went out into the oil field to talk with a friend with reference to obtaining employment. Across the street from appellant’s residence lived a neighbor by the name of Jett, whose little boy was sick. At the invitation and request of Mrs. Jett, Mrs. Reinhardt went to the Jett residence to assist in attentions to the sick child. To this appellant not only assented, but requested his wife to go and remain until he returned from the oil field when he would call and escort her home. When he approached the house where his wife was he also noticed the deceased at the Jett residence. He, appellant, from the rear end of the house saw his wife enter the kitchen, followed by the deceased. She it seems had gone in there to wash her hands after administering some medicine. While in the room deceased approached appellant’s wife and said to her that he intended to kiss her or die, and while she was washing her hands he seized and did kiss her. This outraged the feelings of appellant. He immediately went in the house and engaged in a personal difficulty with deceased. Deceased escaped and ran away. The following morning appellant went into the oil fields again seeking employment. About 12 o’clock or thereabouts he returned to his home, when his wife informed him that the deceased, accompanied by a friend, had twice passed their residence armed with a sixshooter, and looked into the house in such a manner as to arouse her attention. Appellant went to the postoffice and returned. After dinner he was absent from the house and re turned about 3 .o’clock, when his wife handed him a note written by deceased to her. This note is in the following language:

“Saratoga, Tex. Aug. 4, 08.

“My Darling one: I will try and scratch you a few lines. Sweetheart I want you to let me hear from 3rou at once. Let me no the news darling. Its a good thing I ivas in the shape I was in last night for him of course I ran and all I could' do was to protect my eyes. But dear my running is all over dear let me no what you are going to do or what you want to do. I will furnish the money. So Bye bye, As ever

Your own.”

Immediately upon receiving this note appellant went across the street to the Jett residence, secured his pistol, where it seems it had been kept by Mr. Jett, put it upon his person and went down on the streets, and in about twenty-live or thirty minutes he shot and killed deceased. There is a peculiar and very unusual incident shown by this record. Appellant’s wife was testifying on the trial of the case for bail under the writ of habeas corpus, which occurred in the city of Beaumont. While being cross-examined by the State the record narrates that she fainted and died at 2:30 o’clock on September 1, Her testimony was reproduced by appellant on the trial of this case, and forms a part of the statement of facts. She testified, in substance, that the relations of the families had been friendly, and to the fact that she had when a girl corresponded with deceased, and that he had boarded in her father’s family, and that after her marriage to appellant the friendly relations continued to exist up to the night of the 3d of August; that deceased had married two years before the homicide; that the relations between the families continued of the same nature, and that on two occasions when appellant’s wife wanted to raise some money, deceased had offered her $25 to quit her husband and go with him; that deceased had declined to let her have money on furniture which she offered as security, but offered her $25 if she would go with him to Beaumont and quit her husband. This she says she repelled, but did not inform her husband until after the occurrence on the night of the 3d of August. She testified in regard to the acts of the deceased on the morning of the 4th of August in twice passing her house in company with a friend, and to the further fact of his being armed and his actions and deportment, all of which she communicated to her husband before the tragedy. Appellant stated that after he read the note that he “knew it was all in with him;” that “one of them would have to die,” and that when he armed himself he expected that one of them would be killed, and in fact he intimates that one of them, if deceased remained in town, would have to die. After arming himself appellant started down the street and passed two of the State witnesses in front of a drug store on the corner of two streets, one running north and south and the other east and west. He was walking rather rapidly, going in the direction of where deceased was talking to an old man named Rogers, who was sitting in his hack. Rogers testified that deceased was talking to him with reference to carrying him to the depot the following day, deceased intending to go to Beaumont to have his eyes treated. He seems to have had some trouble with one of his eyes, and had previously been to Beaumont for treatment, and that he intended to go the next day for continued treatment. There is considerable discrepancy in the evidence as to the actual position deceased occupied at the time appellant was approaching him. Some of the witnesses show that his foot was on the step of the hack or carriage with his right hand on a post, the carriage being close to the sidewalk; that deceased was facing southwest while appellant was approaching him from the east. Some of the evidence goes to show that he may not have had his foot on the step, but was standing by the post at the edge of the sidewalk. It seems to be practically agreed, however, that he was facing southwest, which threw his left side diagonally to appellant as he approached. It is also shown on the part of the State that as appellant approached and got within six or seven feet or within a short distance of deceased, he jerked his pistol and began shooting, firing four shots, three of which took effect in the body of deceased and one in one of the horses being driven by Rogers. One of the shots entered between a line drawn down the left side and the spinal column. The other two entered more squarely in the back. It is also in evidence that two of the shots struck deceased after he fell, and that he fell face downward. The evidence further discloses that the deceased was armed with a pistol, and when his body was turned over the pistol was lying under his breast, as was his right hand, the pistol and the hand being not far apart. One of the witnesses testified the pistol, however, was not entirely out of his shirt front, but was partially so. The evidence for the State, in substance, shows that the deceased was shot before he knew of the approach of the appellant, and facts were introduced to show that fact. Appellant’s evidence, some of which he detailed himself, is to the effect that as he approached, the deceased slightly turning his body, looked around at appellant and reached for his pistol. When he did that appellant jerked his pistol and began firing. Appellant states as he approached deceased, deceased looked at him, threw his hand for his pistol, and that he drew his pistol immediately, and, to use his expression, “beat him to it.” That it was a question that one of them must be killed then, and he succeeded in getting his pistol first. It is also shown that deceased carried his pistol inside his shirt, that is, that is the conclusion to be arrived at from the testimony, but when he fell the pistol was lying under him according to most of the testimony, though one witness states it was only partly out of his shirt at the time his body was turned over. This is a sufficient statement of the evidence to bring in review the questions presented.

1. There are two questions of vital importance, we think, that need discussion. First, that the charge on manslaughter is too restrictive; and, second, the court failed to charge in connection with the law of self-defense the law of threats. The court, after giving the stereotyped definitions of adequate cause and sudden passion, gave the following: “The following is deemed adequate cause: In-, suiting words or conduct of the person killed toward a female relation of the party guilty of the homicide; and when it is sought to reduce the homicide to the grade of manslaughter by reason of insulting words or conduct of the person killed toward a female relation of the party guilty of the homicide, it must 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 killing may meet with the party killed after having been informed of such insults.

“Flow, bearing in mind the foregoing definition of manslaughter and the instructions under this head, if you believe and find from the evidence before you that the defendant unlawfully killed the said Ed Cantrill by shooting him with a pistol, the same being a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, and further you find that such killing was done under the influence of passion aroused by insulting words or. language (verbal or written) or conduct of the said Ed Cantrill toward the defendant’s wife, then you will find the defendant guilty of manslaughter and assess his punishment at confinement in the penitentiary not less than two nor more than five years.”

Exception was reserved to this charge because it is too restrictive and does not charge the jury the law governing the case as raised by the facts and the evidence, because numerous conditions and circumstances are in evidence sufficient to reduce the homicide to manslaughter, and the court in his charge above quoted limited the jury to a single condition and circumstance instead of directing them to consider all the facts, conditions and circumstances in evidence before them, and because the court, in the charge quoted, failed to marshal each and all of the grounds known as adequate cause or causes under the statute or which might become adequate cause, and further, because the court failed to charge as a portion of the law of manslaughter that the jury could take into consideration the threats made by deceased toward defendant, viewed from the standpoint of the defendant, and take into consideration all the conditions, facts and circumstances surrounding the case so as to reduce the homicide to manslaughter, and because said charge as given influenced the jury in assessing the highest penalty for manslaughter, whereas had the correct principle of the law governing said subject been given and charged to the jury by the marshaling of the adequate causes introduced in evidence, only the minimum penalty would have been imposed, at least, the jury, under the law, could have considered the same for the purpose of mitigating the punishment in case they found for manslaughter. We are of opinion this charge is too restrictive. While it is true the insulting conduct on the night of the 3d of August on the part of deceased toward appellant’s wife would not afford adequate cause on the following day, because he witnessed it and engaged in a personal difficulty over it, yet it could he taken into consideration in view of the note that had been written appellant’s wife by deceased, and the insult contained in the note should have been viewed from the standpoint of the previous trouble and insult, and the other facts in the case showing the conduct of the deceased the day after the trouble the night before, and in the morning before the difficulty, might have entered into the condition of appellant’s mind at the time of the homicide. Had appellant been given the minimum punishment of two years, the charge on manslaughter might not have been sufficient error to require a reversal, but the jury gave appellant the maximum punishment of five years. All these matters entered into the case and evidently entered into the mind of appellant before and at the time of the tragedy. He had not only witnessed the insult the night before, but had resented it vigorously. An intimate friend of years standing had violated the sanctity of his marital relation by the grossest insult to his wife and this had been repeated in a most offensive manner in the note written the following day. Tie had been by the house of appellant twice armed and acted in snch a manner as to aronse the suspicions of his wife as to his intentions, all of which had been communicated to appellant, and, of course, all this would naturally enter into the condition of appellant’s mind at the time of the homicide. See McHenry v. State, 54 Texas Crim. Rep., 477; Swain v. State, 48 Texas Crim. Rep., 98; Neyland v. State, 13 Texas Crim. App., 33; Howard v. State, 23 Texas Crim. App., 265; Orman v. State, 24 Texas Crim. App., 494; Cochran v. State, 28 Texas Crim. App., 422; Baltrip v. State, 30 Texas Crim. Rep., 545. In the condition of this record we are clearly of opinion the charge on manslaughter is too restrictive and that all facts and circumstances should have been submitted to the jury in regard to the question of manslaughter.

2. The court gave a charge on self-defense, omitting the law of threats. Complaint is urged against the charge as given because it is of a negative character instead of an affirmative presentation of the law in regard to this phase of the homicide. This upon another trial will be avoided. In regard to the omission of the court to charge on threats, we are of opinion appellant’s contention is correct. A charge on this subject should have been given. It is unnecessary here to repeat the evidence, as we think it has been sufficiently stated as bearing upon this question. While the threat contained in the note quoted written by deceased to appellant’s wife is not direct and positive, yet the case is so environed by the attendant circumstances in regard to the matter that we are of opinion that the charge on threats should have been given. Deceased had the night before engaged in a personal difficulty with appellant over the insult of the wife of appellant, and had fled from the fight. The condition of affairs between himself and appellant was thus definitely fixed. The matter had become crucial between them. Deceased had written the insulting note which could mean nothing but an aggravation of the trouble the night before, and of his determined purpose to have appellant’s wife go away with him, and that it carried the idea that the' next time the trouble occurred he would be in position not to run, as he states the running, was all over with him. This in effect was a notification to appellant that there was to be serious trouble. Appellant understood it to be a threat against his life, and so expressed himself arid so testified. We believe this construction - of the language of the note was justified on the part of appellant. While the State’s evidence excludes the idea of self-defense, yet the evidence by the defendant indicates that he did not shoot until deceased was getting his pistol. It is true that appellant had expressed the idea that one of them would be killed or had to be killed unless the deceased left town, but the intention to kill is not sufficient. There must be an act showing that he did something to execute that purpose to kill in order to cut him off from resisting an assault or threatened attempt on part of deceased. If appellant approached deceased and shot, as claimed by the State, self-defense would not be in the ease; but if he approached the deceased and before making any demonstration to shoot, deceased reached for his pistol it would not deprive appellant of his right to defend himself.

For the reasons indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.