West v. State

18 Tex. Ct. App. 640, 1885 Tex. Crim. App. LEXIS 151

• Court: Court of Appeals of Texas
• Decided: June 26, 1885
• Docket: No. 3645
• Status: Published

Opinion

White, Presiding Judge.

On the trial the defendant proposed to prove by the witness Puckett that he, the witness, was well acquainted with the general character of Rainey, the person alleged to have been assaulted, and that he was a turbulent, violent, overbearing, dangerous and desperate man. This evidence was objected to by the prosecution, because no predicate had been laid to admit evidence relating to the character of said injured party. This objection was sustained and the evidence excluded.

As to the admissibility in evidence of the character of the deceased on trials for homicide, and of the injured party in trials for assaults with intent to murder, there is much contrariety of decision. It was formerly held wholly inadmissible because the character was no part of the res gestee. (Regina v. Rowton, 2 Leading Criminal Cases (Bennett & Heard), 333, and note, in which the cases are collated and the doctrine discussed.) This doctrine has been greatly modified, and, as now held in most of the States, it is admissible in cases where self-defense is claimed, and inadmissible where there is no such defense. (Whart. Crim. Ev., §§ 71 to 84 inclusive.)

Mr. Wharton says: “Taking the authorities as a whole, we may hold that it is admissible for the defendant, having first established that he was assailed by the deceased, and in apparent danger, to prove that the deceased was a person of ferocity, brutality, vindictiveness and of excessive strength; such evidence being offered for the purpose of showing, first, that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or, secondly, that he was in such apparent extremity as to make out a case of self-defense; or, thirdly, that the deceased’s purpose in encountering the defendant was deadly. Of course it is admissible for the defendant, in order to excuse a violent repulsion of an assault, to prove that he was so over-matched in strength that he had, when attacked, no other means of escaping from death or great bodily harm. But such evidence can never be received for the purpose of justifying an attack by the defendant on the deceased.” (Whart. Crim. Evid., § 84.)

In Texas the rule is that “ threats made by the deceased and the dangerous character of deceased are only admissible when it is shown that, at the time of the homicide, the deceased did some act indicating his purpose then to take the life of the defendant, or do him some serious bodily harm; or when the circumstances of the case raise a doubt in regard to the question whether the accused committed the homicide in self-defense.” (Creswell v. The State, 14 Texas Ct. App., 1.) In Moore v. The State, 15 Texas Ct. App., 1, it is said: “In trials for homicide where the evidence presents the issue of self-defense, the general character of the deceased may be proved by the defendant to show that he, the defendant, was justified in believing himself in danger of losing his life or of sustaining serious bodily injury from the deceased.” (Citing Horbach v. The State, 43 Texas, 242; Stevens v. The State, 1 Texas Ct. App., 591. See, also, Hudson v. The State, 6 Texas Ct. App., 565.)

To apply these rules of law, it appears that the defendant and Eainey, the prosecutor, had had some misunderstanding in the early part of the day, when Eainey told him he would see him after the election was over. At night the parties again met at the Mexican’s house, where they engaged in a game of cards, the game being dealt by the prosecutor; which resulted in the prosecutor’s assaulting the defendant, and kicking him, and picking up defendant’s hat and money, which he had dropped, and retaining them; and when the appellant afterwards came to the door and asked Eainey for his hat, the latter rushed at him with pistol in hand, and ran him off the premises. Shortly afterwards Eainey, the prosecutor, girded his pistol on, ostensibly to go to a friend’s house to stay all night, but he is soon seen at the depot platform, where appellant was standing with another party. After a few words had passed between him and the other party, appellant, who had a gun or carbine in his hand, said: “ AL, have you got my hat ? ” Eainey said, “ Is that you?” And as he said so he bent forward, with his left hand raised just above him, and the witnesses all say that just then the shooting commenced. Two shots were fired, and Edwards, who was standing closest to the parties, says he could not tell who shot first. After appellant fired Ms one shot he ran, and Eainey fired several shots after him.

We think the acts of Eainey at the time of the difficulty, taken in connection with his previous acts and conduct towards appellant, entitled the latter to show by the witness Puckett the general reputation of Eainey as to his being an overbearing, desperate and dangerous man. (State v. Graham, 61 Iowa, 608.)

And in connection with this testimony, we are also of opinion that appellant would have the right to have the jury instructed as was asked in Ms special requested instruction, which was refused: “If the jury believe from the evidence in this case that, at the time George West, defendant, shot Al. Eainey, the defendant believed, and was justified in believing, from the conduct and acts of Al. Eainey at the time he shot him, that it was necessary to shoot Eainey to save his own life, or to protect himself from great bodily injury, the jury will return a verdict of not guilty.” Whilst the general charge of the court upon this phase of the case was correct as far as it went, it did not present the law to the extent and as pertinently in behalf of defendant as he was entitled to, and as it was presented in the requested special instructions.

We are also of the opinion that the eleventh paragraph of the charge was calculated to be misconceived by, if it did not mislead, the jury into the belief that they were not to consider at all any of the acts or any portion of the conduct of Eainey, at the previous difficulty between the parties, in connection with his acts and conduct at the time and place of the shooting.

For error of the court in excluding the proposed evidence of the witness Puckett, as shown in the bill of exceptions, the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 26, 1885.]