Shine v. State

269 S.W. 804, 99 Tex. Crim. 418, 1924 Tex. Crim. App. LEXIS 822

• Court: Court of Criminal Appeals of Texas
• Decided: June 11, 1924
• Docket: No. 8370.
• Status: Published

Opinions

LATTIMORE, Judge.

Appellant was convicted in the district court of Newton county of manslaughter, and his punishment fixed at four years in the penitentiary.

Deceased and one Shankle were at the house of Smith Johnson at night. As they were leaving deceased pulled a pistol at the gate and fired it five times in the air. The parties then walked on down to the road. Here they were overtaken by appellant and Son Douglass. According to the testimony of Shankle, appellant and Douglass both pulled pistols and asked Shankle and deceased what they knew about some fellows who had done some shooting up in front of the house. Shankle said that appellant pulled his pistol on him and that he threw up his hands and that deceased did not put his hands up but put his hand to his pistol and began to move down the hill. Witness said that Douglass was holding his pistol on Gatlin and at this time said, “Stop, stop, if you don’t I’ll shoot”, but deceased did not stop. Douglass then fired at deceased and appellant also began shooting at him. Witness Shankle said after appellant began shooting he, witness, whirled and ran. This witness said that appellant fired several times and that he was shooting in the direction of deceased. One Fowler testified that on the night of the shooting he saw two men walk up to Shankle and deceased and heard them accuse said parties of doing the shooting at Smith Johnson’s and heard one of the two say, “Let’s hold them up and see” and that deceased walked off and Shankle threw his hands up, and that one of the men who had walked up to deceased and Shankle. shot deceased, This witness said deceased got his pistol but he did not know whether he shot any. He also testified that the other man fired,, too. He said that when the shooting began he ran away. From the testimony of this witness and his description of the men by their size and appearance it would be concluded that the man who fired the first shot was Douglass. Witnesses who saw appellant shortly after the shooting testified that he had a bullet hole in his coat sleeve. Son Douglass seems to have been shot in the arm by some one. Appellant took the stand in his own behalf and testified that he and Son Douglass walked together down to where the shooting took place. They had heard some shooting shortly before that. Appellant and Douglass each had pistols of similar size and make. Appellant said that when they got down to where Shankle and deceased were that Douglass asked them if they were the ones who did the shooting up on the hill. That all the parties stopped and deceased and Shankle turned facing them. Appellant said that Douglass asked the other parties if they were the ones who did the shooting. Deceased said, “It is none of your damn business,” and pulled his pistol and that deceased and Douglas started to shooting about the same time. Appellant said that when he got shot in the sleeve he pulled his pistol and fired one shot, but that he did not know which way he was shooting, that he was scared and excited at the time and after he fired he ran away. Questioned as to whether the shot that he fired killed deceased, appellant said he did not know whether he killed him or not, that he was afraid, and that after he got his in the sleeve he was trying to protect himself.

Appellant requested a number of special charges all of which have been carefully examined and in the refusal of none of which do we find reversible error. The court instructed the jury upon manslaughter and self-defense based on both real and apparent danger. The first special charge sought to have the jury instructed that they could not convict the defendant of more than manslaughter. In view of the fact that he was only convicted of manslaughter, this could present no error. Special charge No. 2 sought to have 'the jury told that if appellant’s shot struck and killed deceased; but that at the time he was laboring under such a degree of terror and excitement as to render his mind incapable of cool reflection, that he could be guilty of no higher grade of offense than aggravated assault. This would plainly not be the law. Special charge No. 3 presented the law of self-defense npon apparent danger and seems to have been fully covered by the charge of the court. Special charge No. 4 sought to have the jury instructed as to the law of self-defense in defense of another. We have carefully examined the statement of facts and find nothing therein either in the testimony of the appellant or in any of the circumstances surrounding it which would call for a charge upon this theory. If the State’s testimony be true, appellant and Douglass with their pistols, accosted deceased and his companion and Douglass fired the first shot. The subsequent acts of appellant during the continuation of the same- difficulty could not be predicated upon any theory of the defense of Douglass. Appellant was his own only eye-witness and if his testimony be true it no where suggests that he fired the one shot which he claims to have fired, in defense of Douglass. Special charge No. 5 seems to be based upon the proposition that if appellant’s companion Douglass fired the first shot and provoked the difficulty, defendant would have the same right to defend himself against such attack as he would have had had the shooting been first begun by deceased. We do not see how such conduct could be deemed provoking the difficulty. It seems clear to us that it would be the beginning of the difficulty, and if appellant thereafter participated in the difficulty with Douglass he would have no more right of self-defense than Douglass would have. Appellant’s special charge No. 6 was upon the weight of the testimony and sought to have the jury told the purposes for which they could consider the testimony of the flight of Douglass. Such charge would have been manifestly erroneous. Special charge No. 7 sought to have the jury told that they could not consider the question of murder. This was not applicable but in view of the verdict of the jury presents nothing for our discussion. To the same effect is special charge No. 8. Special charge No. 9 asking a peremptory instruction of not guilty upon the theory that Douglass fired the first shot and killed deceased, is not supported by the testimony and the giving of same would have been erroneous. Under the State’s testimony appellant and Douglass were both armed and acting together with pistols of the same make and size. The bullets that were found in the body of deceased might have been fired from the pistol of either appellant or Douglass.

An exception to the court’s charge because of its refusal to submit the law of assault to murder seems to find no support in the testimony. As above outlined, the State’s case clearly supports the theory of an acting together on the part of appellant and Douglass, and the case made by the defense shows a shooting by appellánt. Such shooting would either be felonious homicide in pursuance of an acting together with Douglass or in self-defense.

Appellant has a bill of exceptions complaining of the argument of State’s attorney to the effect that if appellant was acquitted he would kill a white man. The setting and surroundings and causes which led up to this statement are not shown in the bill, but it is made to appear that upon objection the court promptly withdrew the argument and instructed the jury not to. consider it. We do- not think it of that harmful character that would necessarily ■ call for a reversal of the case.

The bill of exceptions complaining of the refusal of the motion for new trial presents nothing calling or discussion at our hands.

Finding no error in the record, an affirmance will be ordered.

Affirmed.