Singleton v. State

167 S.W. 46, 74 Tex. Crim. 71, 1914 Tex. Crim. App. LEXIS 610

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1914
• Docket: No. 3066.
• Status: Published

Opinions

HARPER, Judge.

Appellant was convicted of assaulting John Hunt with intent to murder him, and prosecutes this appeal from such conviction.

The evidence would show on Sunday morning the 6th of July, 1913, John Hunt and his brother, Raymond Hunt, were at the house of their brother, George Hunt, when George Hunt’s wife came and told him that cattle had gotten into the garden, and he ought to fix the fence. George Hunt secured a hammer, staples, etc., and asked John and Raymond if they would go with him. They went with him and they repaired the fence. While they were there another brother, Sank Hunt, and Jack Langley came driving by in a surrey and stopped. While they were there fixing the fence Misses Ollie Hunt and Viola Hunt, and Mabel Rife came down to the garden to gather vegetables. The road leading from appellant’s house to the Primitive Baptist Church, where there was preaching that day, led by the house of George Hunt and the place where the Hunts were repairing the fence. Appellant, George Maness, Obed Baker and Miss Lvdie Singleton, and Colev Fisher, and Miss Clydie Singleton, left the Singleton home in four buggies on their way to the church. When they got near the point where the fence was being repaired is the point where a sharp conflict in the testimony occurs. Appellant says he had received information of sundry and various threats made by the Hunts, threatening violence, and that when he drew near the point where the Hunts were, John, Raymond and George Hunt started towards him, when he hitched his horse and got out of his buggy; that John Hunt had a gun in his hand, and then testifies: “From the way the Hunts were coming towards me, and the expressions on their faces, and the number of them, I knew they were mad, and felt that they were coming toward me for an unfriendly purpose. When I tied my horse, I walked a few steps north, not exactly towards the Hunts, but kinder back towards the road, leaving them a little to my right. I did not see what the people that were with me doing at this time; the Hunts were crowding me so close I did not have time to watch my people at all. As they came up, Ollie Hunt was a little bit ahead of George and.Viola Hunt, and they passed me a little to the left. The other Hunts were coming up, facing'me; Jack Langley did not come directly toward me—he came up the fence kinder towards George Hunt’s barn. As the Hunts were coming towards me, I said: ‘You people have stopped me here on the road and I haven’t done you any harm; I am going to church,’ and about that time George Hunt was passing to my left, and I just turned around to him, and said: ‘George, make Johnnie put up that gun; if we have any trouble to settle, we can settle it without guns.’ George Hunt never spoke a' word in reply. When I was talking to George Hunt, he was facing me, and I was with my back to the crowd coming up. Just then I heard a gun fire, and I whirled around and jerked my pistol. I supposed that Jack Langley fired that, because when I turned around, John Hunt was fixing to fire at me. I threw my eyes on John first, because he was closest to me, and saw that he was fixing to get the gun up to his shoulder. I rather think the gun he had was a single-barrel shotgun, but I couldn’t say positively whether it was a shotgun or a rifle. He just jerked the gun up, and it looked like he was fixing to get it in shape for shooting, and so I shot him, and in an instant he shot at me, and then ran. I then turned to Jack Langley, and did not pay attention to what became of John Hunt’s gun. T shot one time at John Hunt, and during that time Jaclc Langley continued firing at me from where he was over towards the rock fence, about thirty steps east of me. I then fired at Jack Langley two or three times, or maybe four—I don’t know how many times, but don’t reckon that I hit him. I did not empty my gun at him. Jack Langley was sitting down, and had his gun in both hands when he was shooting at me, and when he got up, I saw that he had quit shooting, and I said: ‘Jack, throw your gun away—throw it over the fence, or I will kill you,’ and he threw it, but it hit the fence and fell back, and then he turned and ran. I did not shoot any more after that. I then turned around, and as I did so, I saw George Hunt lying on the ground. I did not shoot at George Hunt. I never did shoot in the direction of George Hunt at any time during the fight. I shot at John Hunt, because when I whirled around he was the first one I flashed my eyes on, and I saw him with the gun, and thought he was going to kill me with it. When I saw all these Hunts around there, I just thought they were going to wind us up, like I had been hearing about. I did not have an ax-handle with me, and did not take an ax-handle out of my buggy. I did not have an ax-handle in my hand at all down there that day. After Jack Langley threw his gun away I turned around hnd went back to my buggy, and at that time George Hunt was lying on the ground, and I saw him trjdng to hide something between his legs, which I took for a gun, and I said: ‘You better keep that gun hid.’ I then threw out my shells; I think I threw out five shells, and had one loaded cartridge in my gun.” This is appellant’s version of the affair, and it is in the main supported by those who were with him.

On the other hand, the Hunts and those with them say that none of the Hunts were armed, and were in their shirt sleeves. They say, taking Raymond Hunt’s testimony which is in the main supported by all those with him: “When I first saw Singleton he was in a buggy, coming down the road. He was in a buggy by himself, and George Maness was in a buggy behind Singleton, and back of George Maness was either the Fisher boy or the Baker boy in a buggy. Fisher and Baker were also in buggies and had the two Singleton girls with them, there being a couple in each buggy-. The first.thing that attracted my attention was that one of those girls screamed and said to the defendant, ‘Don’t do that!’ and I looked up and saw Singleton turn out of the road and tie his horse; then he went to the back of his buggy and took an ax-handle out of the buggy. While Singleton was tying his horse and getting the ax-handle out of the buggy I also saw George Maness. Maness was tying his horse, or he went through the motion of doing so; I think maybe he wrapped his reins to a hush, and then he went around to the back of his buggy and took a pistol out of it; it looked like a .38 or .45, I don’t know which, but I know it was a pistol. When the defendant got the ax-handle he just took it in his hand and started up towards where we were. I did not measure the distance he came towards us with the ax-handle in his hand, but I expect he came fully thirty yards; it might not have been over twenty or twenty-five yards—I am just guessing at the distance. We did not start towards him until he advanced on us with the ax-handle. I suppose he advanced at least ten steps before we started towards him. When we advanced towards him we were advancing towards George’s house. I did not have anything with me— stick, knife, pistol, or anything of that kind. I was in my shirt sleeves, and had my sleeves rolled up above my elbows. I saw my brother George, and he was not armed. Singleton was coming towards us with the ax-handle in a pretty good walk, a little above the average walk, and looked like he was angry. . . . When he came across the open place towards us with the ax-handle I suppose he advanced fully ten steps before we ever started out towards him. He was between us and the house, just a little bit the right, and when he came towards us with the ax-handle we started out kind of meeting him. Mv brother, John, was about seven feet to my left—we were about side by side—and when Singleton got up within about fifteen feet of us he said, ‘Stop! I am loaded for you,’ and threw his ax-handle down, and brother John and I both stopped. As to whether I know to whom he was talking at that time, I will say that he was looking right straight at brother John and didn’t seem to pay much attention to me at the time. I believe he used some curse words when he said, ‘Stop ! I am loaded for you!’ To my best metiiory the exact words he used were:. ‘Stop, God damn you! I am loaded for you!’ The next person to speak was brother John; he said to Singleton, ‘Oh, don’t do that! What is the matter with you ?’ I think he called Singleton’s name, but am not positive. He said, ‘What are you going to do that for ? Don’t do that!’ and he called Singleton’s name, too, but just how he used these words.I can’t repeat; however, those were the words he used. Singleton then pulled his gun and fired at my brother John and bit -him. I know he hit him when he fired. John then sort of reeled and almost fell, but he turned to the left and went up the hill. Singleton then fired at another man right behind me somewhere, and that was my brother George. I saw him shoot at the man behind me; I did not see right then who it was, but saw afterwards that it was my brother George. When he shot at the man back behind me he then turned around and threw his gun down on me and I ran out to one side of the road where there was a hole next to the road and I went into that hole just about the time he shot at me. He did not hit me, but covered me up in smoke. I heard the pistol shot just as I ran into the hole. At that time he was not over fifteen feet from me. He shot at me only once. After I ran off I looked back and saw brother George lying on the ground, and at that time I saw Singleton shooting at Jack Langley, and then saw Langley pull his gun and shoot at Singleton, and then I ran towards 'the house. I am positive that I heard four shots before Langley fired his gun.” This is the version the State relied on for a conviction, and it was shown by Lee J. Rountree and J. F. Taulbee that the fence had in fact been repaired.

In bills of exceptions, and one very lengthy one, it is shown that appellant objected to all testimony showing that the Hunts were at the point designated to repair a fence, and that the fence had been repaired; that appellant did not know this fact, and this is evidence of a motive unknown to appellant at the time. The Hunts all lived there on adjoining farms and that they were at George Hunt’s home on that Sunday morning was made known to appellant before he left home, as is shown by the testimony of his witness, Coley Fisher, and he gives this as a reason why he armed himself before starting to go by George Hunt’s home. It may be said to be true, that he was not made aware that they were repairing a fence on the road near the house, and neither does the record disclose that the Hunts, or either of them, knew that appellant would pass along there that day. . So the record does not bring this evidence within the rule of law relied on by appellant about testimony of undisclosed motive. The Hunts, nor either of them, had gone to any place, where they knew or had the least idea they would come in contact with appellant, so far as this record discloses; while appellant had gone, as he had a right to do, where he knew he would pass the place where he had been informed that morning the Hunts were gathered, and he says for this reason he armed himself. Again, appellant does not rely for a defense of his action upon the fact that the Hunts were together at the place where the fence was repaired, for he testifies had they remained at this place he would have driven on by, paying no attention to this fact, but the fact that they advanced, John Hunt being armed, towards him in a threatening manner, was the reason why he got out of his buggy and hitched his horse; he furthermore says that he made no demonstration of any character until after he was fired on by John Langley, when he reached for his pistol, and as he did so, John Hunt, attempted to shoot him with a gun, when he shot John Hunt. And if this state of facts is true, appellant would be guilty of no offense, regardless of the reason why the Hunts, instead of being in the house, were down there near the road at the fence. On the other hand, the State’s case is that when appellant got near them, he tied his horse, got out of the buggy and with an ax-handle in his hand, started towards the Hunts, when the Hunts advanced towards him in their shirt sleeves unarmed, and before they or any of them, had made any hostile demonstration, shot John Hunt, shot George Hunt, shot at Baymond Hunt and John Langley. Appellant relies on an actual attack on him, and all his testimony goes to that point, and not upon appearances of danger, viewed from his standpoint from the fact they had gathered at the fence, and from some word or act then done (not amounting to an actual attack) for a defensive theory. The fact they had gone down there to repair and had repaired a fence, would not and could not he such an explanation.of their acts on this occasion as could or would injuriously affect appellant, when his witness Coley Fisher testified: “I saw four or five persons at George Hunt’s when I passed there, going to Singleton’s. I said something to the appellant, Audie Singleton, with reference to seeing these parties at George Hunt’s, and what was the matter there.” Appellant testified that this witness told him this fact, and gave that as his reason why he armed himself before going by George Hunt’s. It is not a case where the person on trial was approached by the person assaulted; it is not a case of an unexpected meeting when he was not looking to meet such person; it is not a case where the assaulted party had gone to a place where he would likely meet the person on trial, hut a case where the person on trial deliberately went where he knew he would necessarily pass by where they were, and under such circumstances the rules of law as announced in Brumley v. State, 21 Texas Crim. App., 222; Gilcrease v. State, 33 Texas Crim. Rep., 619; Ball v. State, 29 Texas Crim. App., 107, and other cases cited by appellant do not apply. We do not wish to be understood as questioning nor limiting the rule of law as announced in those cases, for in each of them it will he seen it- was where the deceased had gone to the place where they knew they would or would likely meet the person on trial, or where the meeting was unexpected, and not a case where the person on trial had gone where he knew beforehand, or had been told he would come in contact with the person assaulted, and had armed himself because he knew that by going the road he intended to travel he would himself bring about the meeting. Fot that,he did not have the right to go this road, but certainly the reason for the persons being at the place could not surprise him when he knew before he traveled the road he would necessarily meet them. 1

The next complaint is that the court erred in not instructing the jury at appellant’s reqiicst that if John Hunt or those with him, or either of them, were making an unlawful attack on Clydie Singleton, appellant should be acquitted. Of course, appellant would have 'the same right to defend against an unlawful attack being made on his sister that he would have to defend against an attack made on him. But at the time he shot John Hunt, had there been an attack made on Miss Singleton, or did it reasonably appear to appellant that anyone was about to make an attack on her? Miss Clydie testified in the case and said: “Ollie Hunt came up to the buggy in which I was sitting and told me to get out of the buggy or she would pull me out, and then hit me. This occurred after the shooting.” Again, she said: “Ollie Hunt was the one that came up to the buggy when the shooting was going on and jumped on me. The trouble between Ollie and myself took place while part of the shooting was going on; it toas after John Hunt was shot.” Appellant testified, “I did not see the fight between my sister and Miss Ollie Hunt. I did not see any part of their fight, and did not see anyone parting the girls.” The testimony and all the testimony shows that this difficulty took place after appellant had shot John Hunt; he saw no part of it, and in his testimony, nor any other testimony in the record is it even suggested that in firing the first shot he fired, he did so because he thought or believed an assault had been made, was about to be made, or that she was in anywise in threatened nor in apparent danger. Consequently the court did not err in refusing the special charge requested. We thoroughly agree with appellant “if the evidence for the State, or the evidence offered in behalf of the defendant, or the evidence taken as a whole, raises a defensive issue, it should be submitted to the jury,” but in no line of testimony in the record before us is it even suggested that appellant in shooting did. so in defense of his sister, and it is as it appears to him, that defense of any character is predicated. In Mitchell v. State, 38 Texas Crim. Rep., 170, this court said: “On trial for murder, where from defendant’s own testimony it appeared that he fired upon deceased solely to prevent deceased from shooting him, it was not error for the court to fail to charge upon his right to kill if deceased was attempting to take the life of his friend, and especially so where, if deceased was making such attack on his friend he did not see it.”

Appellant complains that Dr. Moses, after describing the wound on the day he was called to examine it, was permitted to testify: “The first thing he suffered from when I was called in to see him on July 6, 1913, was hemorrhage, shock and weak pulse, and all the symptoms tliat go with hemorrhage, such as cold extremities and weak, fast pulse, accelerated breathing, due to bleeding into the plural cavity, pressing on the lung, together with the effects of trauma or tearing which would cause pain. That was his condition when I saw him the first time and also when I saw him the second time. When I saw him in August, 1913, he was suffering from the effect of infection, he had developed quite a large collection of pus between the lung and chest wall, that was pressing on the lung, and causing rapid respiration; his breathing was interfered with and he had considerable fever, and his pulse was fast, due to the fever and the effects of weakness.” The court in approving the bill says: “Questions by the State which called for the testimony set out in this bill were, at first, excluded by the court upon the objection of the defendant; afterwards, during his testimony, Doctor Moses testified that he would not state that the wound was such as might probably result in death. The State then renewed the question as set out in the bill, and the objection was then overruled.” After the doctor had testified that he would not state that the wound was such a one as might probably result in death, the evidence was admissible on the issue if appellant was not guilty of assault to murder, whether the wound was of the character to call for a charge on aggravated assault, or simple assault. This testimony shows the bullet did inflict 'serious bodily injury, and the court submitted aggravated assault in his charge.

The only other criticism of the charge of the court made at the time same was submitted to appellant’s counsel is that the charge is erroneous in that it “did not present the issues as to defendant’s right to act upon insulting conduct and words of John Hunt and those acting with him towards and concerning Clydie Singleton, which should be submitted as to the issue of reducing the offense to aggravated assault.” In the brief it is submitted that as witnesses had testified that J. W. Hunt said, “The one who wrote a certain card was a wolf,” and this referred to Miss Clydie Singleton, this raised the issue of insulting conduct towards and concerning a female relative. J. W. Hunt was not present on the occasion of the shooting, did not participate in any manner therein and any language he might have used (he denied using such language) could not be attributed to his children, not to any person present on the occasion of this shooting. And then again, the term “wolf” would not be statutory adequate cause, but would be a circumstance to consider along with other circumstances, if any, to be considered by the jury, and the court instructed the jury:

“You are instructed that any condition or circumstance capable of creating and which does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind for the time incapable of cool reflection, whether accompanied by bodily pain or not, may be adequate cause; and whether such adequate cause existed for such sudden passion (if any there was) it is for you to determine; and in determing this question as well as all other matters before you, you will consider all the facts and circumstances in evidence in this case.” In connection with this charge the court instructed the jury that if appel lant “was by some adequate cause (as herein explained) moved to such degree of anger, rage, sudden resentment or terror as to render him incapable of cool reflection” he would be guilty of aggravated assault only. Thus presenting the issue in as favorable -light as the evidence called for.

It is shown by another bill that Dr. W. H. Moses was sworn to testify, while the defendant was in.an adjoining room consulting with his lawyers ; Judge Bichard Critz testified that he was of counsel for appellant; that during a recess of court, appellant and his counsel stepped in the judge’s room to consult. That upon the reconvening of court, as he returned to the court, Dr. Moses was taking his seat as a witness and was then sworn as a witness; that appellant was not in the courtroom at this time, and he stepped to the stenographer and asked him to make a note of this fact, and as he was giving these instructions to the stenographer, the defendant came into the courtroom. He further testified:

“The matter of the witness being sworn while the defendant was in the private office of the district judge, was not called to the attention of the court, and no request was made that the witness be resworn. The judge’s private office is situated across the hall from the entrance to the courtroom, but a person in that office could not hear the witness or anybody else sitting on the witness stand. I knew at the time that the defendant was not present when the witness Moses was sworn. I don’t remember whether the doors "were open or not. I did not call the attention of the court or counsel on the other side to the fact that the witness was sworn while the defendant was out of the courtroom; I was not trying1 the State’s case. I did call the stenographer’s attention to the matter by requesting him to make a note of the fact. I want to state further that when the defendant came into the courtroom again that he passed right in front of the State’s counsel and in full view of them; I don’t know whether they saw him or not, but I know he passed right along over there (indicating), and came over here and took his seat.” It being apparent that the only proceedings had during the absence of appellant was administering the oath to Dr. Moses, and the matter was not complained of until in the motion for new trial, it presents no error.

The court in his charge fairly and fully presented every issue raised by the testimony; while the testimony is seriously in conflict, that offered by defendant, showing that he acted in self-defense, while that offered by the State, make a case of assault to murder, and under such circumstances no error being presented by the record, the judgment must be affirmed.

Affirmed.