Conviction for murder; punishment, two years in the penitentiary.
That appellant shot deceased with a shot gun, thereby causing his death, is undisputed. That appellant had charged deceased with theft, had said that his wife had been drunk, and had made other statements against him, seems also without dispute. That deceased had made many threats against appellant of which the latter had been informed, seems also uncontradicted. At the time of this killing appellant was at work upon a wagon. Deceased, accompanied by his wife in a car, drove up and stopped. Deceased asked appellant if he was working hard or hardly working. Further conversation between the two of a nature and character to indicate feeling, is in the record. According to the State witnesses appellant presently said that he had taken all he was going to; that he walked to his wagon and got a shot gun and raised it to shoot; at this time the wife of deceased got between them. Appellant then walked
toward the back of the car of deceased and shot deceased under the right shoulder blade. Witnesses said deceased was doing nothing when he was shot. He had no weapon. After the shooting appellant told a State witness that he had put deceased where he would not tell any more lies or steal any more. Appellant's own testimony is not very different from that of the State witnesses. We quote from same:
"When he come up he said he wanted to talk to me and he asked me if his wife looked like she was drunk and I told him 'No.' I had never told anybody his wife was drunk. Then he said I was a damn liar. I said, I told him I had taken all I was going to take and started for my gun and I got my gun and shot him. Then I got in the car and left.
"I shot him in the back; I had more than one shot in the gun. I didn't shoot him again because I didn't want to. He didn't come out with his pistol; he never did come out with it. There was no necessity for shooting him any more."
He also said:
"I told Mr. Ticer to get off my place, that I had stood all I was going to stand; I asked him twice to leave. He said he wouldn't get off my place until he got ready."
Again in another place he testified:
"I didn't tell him I was going to kill him. When I got the gun and picked it up I didn't tell him I was going to kill him. As to whether I shot him down without any warning, he said he wouldn't go until he got ready and I figured he had come to kill me, if I hadn't I wouldn't have shot him.
"After I got the gun and started to walk back towards the car and was raising it up to shoot him she got in the way. As to whether she was pleading with me not to shoot him, she didn't; she never opened her lip. I didn't walk behind Mr. Ticer then to shoot him; I had to step behind her until she fell out of the car and then I shot him. I shot him right under the shoulder blade."
It is undisputed that deceased was in his shirt sleeves at the time he was killed, and that he had on an ordinary pair of trousers. Appellant claimed in his cross-examination that deceased made some movement toward the waistband of his pants, and that he thought deceased was trying to get a weapon. He testified further that deceased was sitting on the front seat of his car at the time of the shooting, and that he, appellant, was "quartering" between the two seats about five steps from the car when he shot. We might observe
that we have rarely seen a case in which the defense was given a wider range in the introduction of its testimony as reflecting upon the deceased, and this may account for the smallness of the penalty inflicted.
We find in the record but one bill of exception in which appears complaint of the fact that the verdict when brought in found appellant guilty of "homicide" which was changed by the trial judge in the presence of and with the consent of the jury by erasing the word "homicide" and writing in its place "murder as charged in the indictment." After the change was made, the verdict as changed was read and all the jury stated that such was their verdict. We think the complaint in the bill has no substance. Art. 696 C. C. P.; Southern v. State, 34 Tex. Crim. 144; Fifer v. State, 64 Tex.Crim. Rep.; Gould v. State, 66 Tex.Crim. Rep.; Scott v. State, 97 Tex. Crim. 105; Allison v. State, 98 Tex.Crim. Rep..
A number of exceptions were taken to the charge of the court, none of which are deemed to be well founded. Appellant insists that his third exception is good, which in substance sets up that the charge failed to charge separately on the right of self-defense and on the question of threats, and failed to apply the law of reasonable doubt separately as to each defense. We might observe that the proposition of reasonable doubt was adverted to in the charge of the court herein, not only in general terms as applicable to the whole case but in more than a dozen instances where appears specific application. We again refer to the fact that abundant threats were proved without contradiction, some of same being to take the life of appellant. The soundness of any claim of self-defense must rest upon something said or done by the deceased which, viewed from the standpoint of the accused, might form the basis for reasonable apprehension of death or the infliction of serious bodily injury by deceased, — and this is true whether such claim be founded on threats or otherwise. The court charged on self-defense generally in paragraph eleven of the charge, and also gave the following charge on self-defense based on threats:
"Now, bearing in mind the instructions hereinbefore and elsewhere given in this charge, if you find and believe from the evidence that the defendant, J. L. Shannon, killed the deceased, A. L. Ticer, and that before the homicide the deceased had made a threat or threats to kill the defendant, or to do the defendant serious bodily injury, which threats were made either to the defendant himself
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Conviction for murder; punishment, two years in the penitentiary.
That appellant shot deceased with a shot gun, thereby causing his death, is undisputed. That appellant had charged deceased with theft, had said that his wife had been drunk, and had made other statements against him, seems also without dispute. That deceased had made many threats against appellant of which the latter had been informed, seems also uncontradicted. At the time of this killing appellant was at work upon a wagon. Deceased, accompanied by his wife in a car, drove up and stopped. Deceased asked appellant if he was working hard or hardly working. Further conversation between the two of a nature and character to indicate feeling, is in the record. According to the State witnesses appellant presently said that he had taken all he was going to; that he walked to his wagon and got a shot gun and raised it to shoot; at this time the wife of deceased got between them. Appellant then walked
toward the back of the car of deceased and shot deceased under the right shoulder blade. Witnesses said deceased was doing nothing when he was shot. He had no weapon. After the shooting appellant told a State witness that he had put deceased where he would not tell any more lies or steal any more. Appellant's own testimony is not very different from that of the State witnesses. We quote from same:
"When he come up he said he wanted to talk to me and he asked me if his wife looked like she was drunk and I told him 'No.' I had never told anybody his wife was drunk. Then he said I was a damn liar. I said, I told him I had taken all I was going to take and started for my gun and I got my gun and shot him. Then I got in the car and left.
"I shot him in the back; I had more than one shot in the gun. I didn't shoot him again because I didn't want to. He didn't come out with his pistol; he never did come out with it. There was no necessity for shooting him any more."
He also said:
"I told Mr. Ticer to get off my place, that I had stood all I was going to stand; I asked him twice to leave. He said he wouldn't get off my place until he got ready."
Again in another place he testified:
"I didn't tell him I was going to kill him. When I got the gun and picked it up I didn't tell him I was going to kill him. As to whether I shot him down without any warning, he said he wouldn't go until he got ready and I figured he had come to kill me, if I hadn't I wouldn't have shot him.
"After I got the gun and started to walk back towards the car and was raising it up to shoot him she got in the way. As to whether she was pleading with me not to shoot him, she didn't; she never opened her lip. I didn't walk behind Mr. Ticer then to shoot him; I had to step behind her until she fell out of the car and then I shot him. I shot him right under the shoulder blade."
It is undisputed that deceased was in his shirt sleeves at the time he was killed, and that he had on an ordinary pair of trousers. Appellant claimed in his cross-examination that deceased made some movement toward the waistband of his pants, and that he thought deceased was trying to get a weapon. He testified further that deceased was sitting on the front seat of his car at the time of the shooting, and that he, appellant, was "quartering" between the two seats about five steps from the car when he shot. We might observe
that we have rarely seen a case in which the defense was given a wider range in the introduction of its testimony as reflecting upon the deceased, and this may account for the smallness of the penalty inflicted.
We find in the record but one bill of exception in which appears complaint of the fact that the verdict when brought in found appellant guilty of "homicide" which was changed by the trial judge in the presence of and with the consent of the jury by erasing the word "homicide" and writing in its place "murder as charged in the indictment." After the change was made, the verdict as changed was read and all the jury stated that such was their verdict. We think the complaint in the bill has no substance. Art. 696 C. C. P.; Southern v. State, 34 Tex. Crim. 144; Fifer v. State, 64 Tex.Crim. Rep.; Gould v. State, 66 Tex.Crim. Rep.; Scott v. State, 97 Tex. Crim. 105; Allison v. State, 98 Tex.Crim. Rep..
A number of exceptions were taken to the charge of the court, none of which are deemed to be well founded. Appellant insists that his third exception is good, which in substance sets up that the charge failed to charge separately on the right of self-defense and on the question of threats, and failed to apply the law of reasonable doubt separately as to each defense. We might observe that the proposition of reasonable doubt was adverted to in the charge of the court herein, not only in general terms as applicable to the whole case but in more than a dozen instances where appears specific application. We again refer to the fact that abundant threats were proved without contradiction, some of same being to take the life of appellant. The soundness of any claim of self-defense must rest upon something said or done by the deceased which, viewed from the standpoint of the accused, might form the basis for reasonable apprehension of death or the infliction of serious bodily injury by deceased, — and this is true whether such claim be founded on threats or otherwise. The court charged on self-defense generally in paragraph eleven of the charge, and also gave the following charge on self-defense based on threats:
"Now, bearing in mind the instructions hereinbefore and elsewhere given in this charge, if you find and believe from the evidence that the defendant, J. L. Shannon, killed the deceased, A. L. Ticer, and that before the homicide the deceased had made a threat or threats to kill the defendant, or to do the defendant serious bodily injury, which threats were made either to the defendant himself
personally, or to any other person or persons and that prior to the homicide the defendant had been informed thereof, or that he had been so informed and reasonably believed such information, whether in fact true or not; and, if you further find and believe from the evidence, that at the time of the homicide the deceased by some act or conduct on his part then done or demonstration made, or words spoken, if any, manifested an intention to execute such threat or threats, if any so made or purported to have been made, and that it then and there reasonably appeared to the defendant, viewed alone from his standpoint at the time, that such threat or purported threat, if any so made, or purported to have been made, were then and there about to be executed by the deceased, and that by reason thereof he, the defendant, was in immediate danger of losing his life or suffering serious bodily injury at the hands of the deceased, then and in such event he was not bound to retreat and could stand his ground and defend himself and in so doing use such force and means as then and there reasonably appeared to him to be necessary, and so continue until such necessity, if any, ceased; and, if acting under such circumstances, he killed the deceased, he would be justified therein under the law, and if you so find and believe from the evidence, or have a reasonable doubt thereof, you will acquit the defendant and return a verdict of not guilty herein." We have no doubt of the sufficiency of this to give to appellant the benefit of the application of the doctrine of reasonable doubt to his specific defense, as fully as the law demands, or as is stated in any opinion of this court upon a fair consideration of the facts, and do not think said charge open to the criticism that it left the jury to determine the right of self-defense viewed from the standpoint of the jury and not the standpoint of the accused. The entire charge can be looked to in every case in order to determine the validity of any complaint of any part of such charge. There were several special charges asked and refused, but we believe them all covered by the main charge, and that the record in this case is here without just complaint.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.