Robinson v. State

274 S.W. 137, 100 Tex. Crim. 424, 1924 Tex. Crim. App. LEXIS 836

Opinions

LATTIMORE, Judge. —

Appellant was convicted in the district court of Young County of murder, and his punishment fixed at twenty-five years in the penitentiary.

The indictment was attacked by motion to quash based on the ground that the court in which it was returned was created as an emergency court and for the specific term of two years, that there was nothing in the bill creating the court which gave it power to impanel a grand jury, and hence the exercise of such power was ultra vires and an indictment returned by a grand jury impaneled by said court was a nullity. We find nothing in the act which brought said court into existence, see Chapter 76, Acts Regular Session' of 38th Legislature, which bears out this contention. Sec. 2 of said act is as follows:

“The jurisdiction of each of said new district courts of said Ninety-second Judicial District shall extend throughout that district. The jurisdiction of said new district court of Stephens County shall extend to and include all proceedings and matters of which district courts of this State have or may be given jurisdiction by the Constitution or by the law of this State. The jurisdiction of said new district court of Young County shall extend to and include all civil and all criminal eases, proceedings and matters of which district courts of this State have or may be given jurisdiction by the Constitution or by the laws of this State.”

There can be no question but that under our laws and Constitution district courts alone have the power to call into existence grand juries by rules prescribed by statute. In no other way can felony indictments be originated. The plain statements in the section of the law above quoted provide that the jurisdiction of said new district court of Young County shall. extend to all proceedings and matters of which district courts of this State have . . . jurisdiction. That this comprehends the exercise of the power of a district court in the matter of impaneling a grand jury with all of its attendant and subsequent functions and consequences, seems too plain to call for analysis or further discussion.

We note the other matters complained of, in the order in which they are presented in the able brief filed on behalf of appellant. It seems clear that a special charge stating that if deceased was armed with a shot gun and was advancing, of about to advance, etc., the law presumes he intended to kill appellant or do him serious bodily injury, — does not state the law as set out in Art. 1106 P. C. Said article is well understood and has been discussed in many cases and simply provides that when a homicide takes place to prevent murder, etc., if the weapon used ... is such as would have been calculated to produce that result, the law presumes that he intended to kill, etc. That one who advances toward another, or who is me,rely about of advance, may be shot down on the presumption that he intended to murder or maim the party toward whom he was advancing solely because he had a shot gun, is not the law and this conclusion seems so plain that we think argument not necessary to demonstrate the unsoundness of the contention. None of the authorities cited and none known to this court would justify such charge. What is meant by “about to advance 1 ’’ What if the advancing be provoked, or be evidently without intent to do bodily harm ? Said special charge ignored the many conditions under which one may advance upon another, though in possession of a gun, without forfeiting his right to life, and its refusal was not error.

A special charge sought to have the jury told that if appellant fired the first shot in self-defense, then he had the right to shoot as long as it appeared to him he was in danger of life or serious bodily injury. Under some facts such a charge might be appropriate but not under those in this record. Deceased was shot but once, and the witnesses are in accord, both for the State and the defense, that his wound was inflicted by the first shot fired by appellant. The eye-witness who testifies for the State swears that after appellant shot deceased he ran some distance and then fired again, but the witness testified affirmatively that he saw the dirt fly where this bullet struck some distance from deceased. Appellant’s brother, who was an eye-witness, swore that appellant shot the deceased in the side the first shot, and that he then ran and when he reached a point about one hundred and fifty yards away, he fired again. Appellant also swore that he shot but twice and was only about three feet from deceased when he fired the first shot and that he was about one hundred and fifty yards away when he fired the second time. It thus appears that there is no suggestion of a possibility of the deceased being struck by the second shot: it also seems without dispute that he fired a number of shots at appellant after the first shot was fired by the latter, and that appellant did not fire the last shot, as he himself says, “till I got plumb out of reach of the gun”. We are of opinion that it was not error to refuse to give said charge. The authorities cited by appellant present facts on which, because of retreat of the deceased, or of some altered attitude of the parties after the first shot was fired, there might be danger of a verdict adverse to appellant, if arrived at by considering his right to kill when the last shot was fired, a contingency which was impossible to have been arrived at, or to arise under the facts in this case.

A special charge which sought to have the jury told that if appellant met deceased and the latter threw his gun on the defendant, or made any other demonstration by words or acts, or both, and the defendant . . . then shot deceased believing that his life was in danger, etc., — does not present a correct or applicable legal statement, and the court below was justified in the refusal of said special charge No. 4. “Made any demonstration” is not a phrase which has received judicial interpretation and such an instruction would he erroneous and would give the jury no legal standard by which they may judge of the acts of the deceased which would justify a homicide.

Special charge No. 5 is on the weight of the evidence and suggests matters which have no support in testimony in this case; while grouping facts which seem to raise the issue of provoking the difficulty, it wholly ignores such theory and for these reasons we would think it properly refused. There is nothing in the testimony of either the State or the appellant which suggests an abandonment of the difficulty on the part of appellant. The two special charges just under discussion are open to the objection relative to grouping a part of the facts in a special charge, as evidenced in See. 1944 of Mr. Branch’s Annotated P. 0. which seems supported by the authorities there cited.

Special charge No. 6 was covered by the main charge which in our opinion affirmatively submitted the law of self-defense based on acts or acts coupled with words of the deceased which created in the mind of appellant a .reasonable apprehension that he was in danger of losing his life or suffering serious bodily harm. The enumeration of a number of supposed acts of the deceased in a charge which seeks to have the jury told that if deceased did these things, etc., is not only open to the objection to grouping facts just mentioned but adds no force to an affirmative presentation of the defensive theory.

Special charge No. 7, in so far as it presented a proposition of law pertinent to the facts in this case, was covered by the main charge. We find nothing in any authority cited by appellant in support of his contention that this charge should have been given, which remotely sheds light on the necessity, under the facts of this case, that the jury must take into consideration the relative strength of the -parties. The combat reflected by the facts was entirely one with deadly weapons and no attempt or threatened resort to physical violence otherwise appears.

In the preliminary part of the main charge on manslaughter the court told the jury in substance that if they found that the shooting was not done in defense of himself against an unlawful attack, etc., but that the killing was under the immediate influence of sudden passion, etc., they should find appellant guilty of manslaughter. There is an exception to the use of the word “unlawful” in this connection but to our minds it presents no error. The court was charging on manslaughter and the use of said word was in no affirmative connection and we think it impossible to have injuriously affected the case. Nor are we able to agree to the general exception to the main charge based on the proposition that it failed to-submit affirmatively a charge upon the defensive theory.

By bills of exceptions Nos. 11 and 12 are presented appellant’s criticisms of the submission of the law of provoking the difficulty. We are not in agreement with the contention .either that the charge was argumentative or on the weight of the evidence, or that it was not called for by the facts. Of course if not called for by the facts it would necessarily be an unwarranted limitation on the right of self-defense. We note the facts in determining whether said charge was raised by the testimony and are of opinion that it was clearly called for by the State’s testimony, which is ordinarily looked to to justify the giving of such charge, and also believe such theory suggested by the testimony for the defense. State witness Olan Robinson testified that he, deceased and a young son of deceased were driving some horses out of a pasture. Deceased was sitting in his car facing south toward the point where the two boys were driving the horses through the gate. Appellant and another son of deceased appeared coming in the direction of these parties, from the north. They drove their car up to a point a few feet in the rear of the car occupied ( by deceased, and just to the west of it. Appellant got out of the ear before it stopped and with a pistol in his hand ran to the car in which deceased was sitting and pointed the pistol at deceased. Witness testified that he heard deceased say, “Don’t shoot, it aint no use”, or something like that and that appellant put his pistol in his belt or pants and backed away toward the car in which he had come, going out of sight of witness behind the car of deceased. At this time deceased got out of his car on the west side holding a pump shotgun in his hand “by the pump”. He then went around the north end of his car and to the east side of .it near the door. At this point appellant again came into the view of witness on the east side of the ear, advancing toward deceased and holding in his hand a pistol. When he reached a point about eight feet from deceased the latter said, “If you don’t stop I will knock you down’’ and raised his gun, holding it by the barrel, clubbed. He did not strike but began to lower his gun from this position and when it was just about down, appellant fired his pistol at deceased and ran. Witness said that as appellant ran away deceased reversed the gun, got it in a shooting position and fired several shots at appellant. The gun was loaded with bird-shot. After running some distance appellant turned and fired again, the bullet striking the ground and making dirt fly some distance from deceased. Appellant and his brother who was in the car with him, testified in substance that when they got to a point near the car of deceased, the brother of appellant got out of their car and went toward that occupied by deceased and demanded to know why deceased was driving all of the horses out and that deceased said it was none of their damned business and began to curse and abuse both of them, and that appellant got out of his car and started toward where his father and brother were but that either because he saw his father get out of the car with a gun and advance toward him, or because his brother told him that his father was going to shoot, appellant went back to their car and got a pistol which he knew to be in the car. They then said that appellant and deceased advanced toward each other, deceased continuing to curse and abuse and threatening to kill appellant; that when they were close to each other deceased attempted to shoot appellant, who knocked up the barrel of the gun which fired in the air, and that appellant then shot deceased and ran away, deceased firing a number of shots with said shot gun at him as he fled. They said that when out of range of the shot gun appellant stopped and fired again. Considering this question in the light of the State’s testimony above quoted, it seems beyond question .that the issue of provoking the difficulty was raised. The first hostile act or offensive demonstration according to State witness was made by appellant when he presented his weapon at deceased while the latter was sitting-in his car. That the latter was then thus provoked to get out of his car with his shotgun and go around to the east side- of the car seems clear. That at this point appellant again advanced upon1' deceased but did not fire until deceased had made a threatening demonstration with his gun also is plain from the State’s testimony. The question as to what the purpose of appellant was in making these hostile demonstrations was for the jury under an appropriate presentation of the law. See cases collated by Mr. Branch in Sec. 1954 of his Annotated P. C. Many cases will be found in which this court has upheld the proposition that a charge was called for upon provoking the difficulty, whose facts were no stronger in support thereof than are found in the defensive testimony in this case. According to it, deceased was sitting quietly in his car when he was approached by appellant and his brother, both of whom knew of the ill-feeling existing and deceased was first accosted by appellant’s brother by a demand to know why he was driving the horses out of the pasture. Appellant and his brother had gone to the place together and with a pistol in their car, and their purpose in so doing and in what they said and did, and the question as to whether same was provocative of an assault by deceased and if so whether it was to be used as a pretext for killing deceased, would become questions to be decided by the jury under appropriate instructions. A difficulty may be provoked by words or acts, or both, and when it appears that the first hostile words or hostile acts came from the accused or those who might be reasonably supposed from the testimony to be acting with him, and the situation then leads- connectedly to a killing in which the accused asserts that he acted in self-defense against a hostile demonstration or act on the part of the deceased, this court would hesitate to hold it reversible error on the part of the trial court to have submitted the issue of provoking the difficulty. Under the facts in this case we have no doubt of the propriety of such instruction.

Nor do we think any error was committed by the court submitting to the jury as a converse, and as presenting a favorable theory to the accused, for him to tell the jury that if the acts and words of the defendant were not intended by him to produce- the occasion, or such acts and words were not reasonably calculated to produce the occasion or to bring about the difficulty, then the right of self-defense- would not be qualified nor abridged.

Appellant excepted to the court’s charge because it nowhere presented a charge on uncommunicated threats. This subject has recently been fully considered and such action on the part of the trial court held not error. Dunne v. State, No. 7520, opinion on rehearing handed down March 26, 1924.

We do not think the remark of the learned trial judge to the district attorney that his questions were leading and suggestive and that he would “get a reversible error in this case”, were of that harmful character to call for a reversal. Johnson v. State, 149 S. W. Rep. 165, cited by appellant, seems to be on stronger facts and a statement much more likely to have an injurious effect on the case than the statement complained of in this record, and the court in the opinion in that case does not base his reversal at all upon what was said, while stating that it was improper.

Appellant has another criticism of the charge of the court directed at that part of same in which the jury were told that “if the defendant honestly believed that such information was true”. We are of opinion that the case of Tillery v. State, 24 Texas Crim. App. 251, is not in point. The exact" question is discussed and settled adversely to appellant in the case of Williams v. State, 67 Texas Crim. Rep. 302, which distinguishes the Tillery case, supra.

There are other matters complained of and we have given careful attention to each of them, but deem it unnecessary to extend this opinion by a discussion of them.

Finding no error in the record which would justify a reversal, the judgment of the trial court will be affirmed.

Affirmed.