Williams v. State

2 Tex. Ct. App. 271

Opinion

Ector, P. J.

The defendant, Ben Williams, was indicted and tried in the criminal district court of the city of Calvert, in Robertson county, for the murder of Sam Middleton. He was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for twelve years. A motion for new trial was made and overruled, and the defendant took an appeal.

The assignment of errors filed in the lower court presents two questions:

1st. The ruling of the court in refusing to give certain special instructions asked by the defendant.

2d. The action of the court in overruling defendant’s motion for a new trial.

The counsel for the defendant has raised a question as to the sufficiency of the indictment, for the first time in this court. His objection to the indictment is that it does not charge that the defendant gave the mortal wound. This objection is, we think, not well taken. The indictment does not follow iii all respects the precedents laid down by Mr. Wharton. It leaves out some words used in the precedents. We believe, however, it is good. It contains the nine requisites prescribed in Article 2863 of the Code of Criminal Procedure (Pasc. Dig.), and sufficiently defines the offense to enable the accused to prepare for his defense, and to plead “ previous conviction or acquittal” under it of the same offense.

The 10th subdivision of the charge of the judge is as follows : “ If it be shown that the defendant shot deceased in his leg, inflicting an injury which might not have proved fatal, yet, if defendant willfully failed or neglected to call in a physician, or procure nurses or other attendants, and that said injury inflicted by the shot caused deceased’s death, in consequence of said failure or neglect, defendant shall be deemed equally guilty as if the injury were one which would inevitably lead to death.” This instruction is in accordance with Article 2204, Paschal’s Digest. The counsel for the defendant contends that the latter part of Article 2204 has no reference to a case like the present, where the deceased was shot down in the midst of his family and friends, and that the error in this charge was not cured by charges subsequently given. We believe that said Article 2204 is applicable to all cases, and that whether the deceased was at home or abroad when he was shot can make no difference.

On this branch of the law the court further instructed the jury that, “ where a surgical operation is performed in a proper manner, and under circumstances which render it necessary in the opinion of competent surgeons, upon one who has received a wound apparently mortal, and such operation' is ineffectual to afford relief and save the life of the patient, or is itself the immediate cause of death, the party inflicting the wound will, nevertheless, be responsible for. the consequences.”

The court also gave this charge, which was asked by the defendant, viz.: “If the jury believe from the evidence that the defendant did not willfully fail or neglect to call in a physician or procure nurses, or if such assistance was procured, and the wound received by deceased was not in itself mortal, but from gross neglect on the part of his physician or nurses death resulted, the prisoner cannot be convicted of murder.”

The general rule of both law and reason, independent of said Article 2204 of our Code, is that, whenever a wound is inflicted under circumstances which render the party inflicting it criminally responsible, if death follows, the person inflicting the wound will be held responsible for the homicide, though the person wounded would have died from other causes, or would have died from this one had not others operated with it, provided the wound really contributed mediately or immediately to the death. Mr. Bishop lays down the correct rule of law on this question, in which he says: “The doctrine is established that if the blow caused the death it is sufficient, though the individual might have recovered had he used proper care himself, or submitted to a surgical operation to which he refused submission, or had the surgeons treated the wounds properly. So, also, if the person would have died from some other-cause already operating, yet, if the wound hastened the termination of life, this is enough. But where the wound was, not of itself mortal, and the party died in consequence solely of improper treatment, not at all of the wound, the result is otherwise. This last proposition, however, is practically dangerous, because, in law, if the person dies by the action of the wound and by the medical or surgical action, jointly, the wound must clearly be regarded sufficiently a cause of the death. And the wound need not even be a concurrent cause, much less need it be the next proximate one ; for, if it is the cause of the cause, no more is required.” 2 Bishop’s Cr. Law, sec. 680, and cases cited in notes; 1 Hale P. C. 428; 8 Greenl. on Ev., sec. 139; 1 Russ. on Cr. 505.

The shooting of deceased by defendant, and the inflicting thereby the wound, on the leg of the deceased, are clearly proved. The first physician called in wanted immediately to amputate the leg. The second physician, Dr. McLendon, though he thought at first he could save the leg notwithstanding it was a compound fracture, some days after his first visit found the deceased in a very low condition, the wound suppurating, and was obliged to amputate the limb. This physician also says : “In my opinion the amputation of the leg was necessary to save his life.” There is no proof that deceased was neglected or unskillfully treated.

The counsel for the defendant, in his brief, insists that the 11th instruction given by the court, on the subject of self-defense, does not present the real pivotal point of the case, to wit, the impression made on the mind of defendant by the conduct of the deceased. This charge, as given, is as follows : “ Homicide is permitted in' the necessary defense of one’s person. If, therefore, the jury believe from the evidence that the deceased made an unlawful attack upon defendant, producing in his mind a reasonable expectation or fear of death or some serious bodily injury, and that the defendant shot and killed deceased under said circumstances, in defense of his person, you will acquit him.’’

The court further instructed the jury as follows : “ The defendant is presumed to be innocent until his guilt is established by the evidence, to the satisfaction of the jury, and in case of a reasonable doubt as to his guilt he is to be acquitted.”

No bill of exceptions was taken by the defendant to the charge of the court, or to its ruling in refusing certain instructions asked by the defendant. The court properly opened up every avenue to the defendant, in admitting all the testimony offered by him that could possibly have any bearing in defendant’s favor.

He was allowed to prove that Sam Middleton, the deceased, went to the house of defendant two or three hours before day, on the night preceding the shooting, forced open the door, and with an iron skillet assaulted the defendant when asleep in his bed, inflicting on his head two severe wounds ; that on the very morning of the shooting the deceased threatened to take the life of defendant, and gave no other reason for it than that deceased had shot Ms dog; which threat was communicated to the defendant before the shooting. Defendant also proved that Middleton was a dangerous and violent man, who would likely carry out any threat made by him. About sunrise of the morning on which defendant was assaulted by Middleton, the deceased, as the statement of facts shows, the defendant went to the house of Middleton, after having procured his (defendant’s) pistol, and then the fatal controversy occurred ,deceased was shot down in his own yard in the presence of his family.

After a careful examination of the testimony, and the very ingenious brief of defendant’s counsel, we believe that the court in its instructions to the jury had already charged the law applicable to every legitimate deduction from the facts, and that the court did not err in refusing to give the special instructions which were asked by defendant’s counsel and were refused. An examination of the authorities cited by counsel, which have any bearing on this question, show that in those cases some material evidence was improperly excluded, or some erroneous charge was given, and generally the accused was not the aggressor at the time of the homicide.

The assault made upon the accused, the threats made by the deceased to kill the defendant, and the character of the deceased as a violent man—one who would execute any threat made by him—would not justify or excuse the defendant in firing the fatal shot which wounded the deceased. The defendant should have appealed to the law rather than have become his own avenger.

It. is true that one witness who was present when the defendant shot the deceased testified that defendant, on arriving at the house of Sam Middleton, and when within about fifteen yards of the deceased, said to him, “ Sam, why did you try to-kill me last night?” and that Sam said to Ben, “Yes, G—d d—n you, I did try to kill you, and I will kill you, if it is the last thing I do,” and advanced upon the defendant with his hand in his pocket; that Ben then drew his pistol, and said, “Sam, don’t you come any closer to me; ” that Sam continued to advance, and defendant shot at Sam; that he missed him the first fire: that defendant then fired the second shot, which hit Middleton in the leg, when deceased was ten paces from him.

The other two witnesses who were present at the time of the shooting gave a very different account of the difficulty.

The wife of the deceased says she "was near her husband when the last shot was fired; that he was standing still, some twelve steps from the defendant; that he had no pistol, but had his pipe in his hand when he was shot. None of the witnesses present saw any pistol in the hand of the deceased ; none was seen on the ground where he fell, and none was seen in his pants-pocket, or about his person, after he was shot.

The jury doubtless believed from the evidence that the defendant, some three hours after he had been assaulted by Middleton, armed himself, hunted up the deceased, commenced the difficulty, and shot the deceased in revenge for the injury that deceased had previously inflicted upon him.

When one who is without fault himself is attacked by another in such a manner or under such circumstances as furnish a reasonable ground for apprehending a design to take away his life, and there is reasonable ground for believing the danger imminent, and that such design will be accomplished, if not prevented, the party so assaulted may promptly act upon such appearances and kill his assailant, to aVoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and there was in fact neither design to do him any serious injury nor danger that it would be done. He must in all such cases decide for himself, at his peril, as to whether the circumstances in which he is placed, and upon which he acts, are such as to furnish a reasonable apprehension of such danger; for that is a matter subject to judicial review.

The right of self-defense is commonly stated in the American cases thus, says Mr. Bishop: “If a person assaulted, being himself without fault, reasonably apprehends death or great bodily harm to himself' unless he kills the assailant, the killing is justifiable.” 2 Bishop’s Cr. Law, sec. 644.

Under our Code, when an unlawful attack is made upon a defendant, and the attack is of such a nature that the defendant has reasonable grounds to believe that he is then in immediate and impending danger of being murdered or maimed by his assailant, he is justifiable in killing his assailant when at the time of the killing some act has been done by the deceased showing evidently an intention to commit such offense; and the defendant in such a case may act promptly, without resorting to other means before killing his assailant, because in such a case the law presumes a party’s safety depends upon his prompt action in killing his assailant. Pasc. Dig., Art. 2226.

And, although the attack may be unlawful and violent, yet, if the act done by the deceased indicated a less degree of personal injury than to murder or maim (or to commit rape, robbery, arson, burglary, or theft at night), then, before the killing can be justified or excused, all other means must be resorted to (except that the party so unlawfully attacked is not bound to retreat before killing his adversary) for the prevention of the injury, and the killing must take place while the. party killed is in the very act of making such unlawful and violent attack. Pasc. Dig., Art. 2228. "

We are clearly of the opinion that the judge in the lower court was correct in believing that, if the deceased was killed by the accused, the case was unquestionably, as shown from the testimony, either murder or justifiable homicide, and that he acted properly in not charging on manslaughter. Such a charge would not have been applicable to the facts, and would have had a tendency to confuse or mislead the jury.

The motion for a new trial was properly overruled. The case has been carefully tried, and ably defended by the prisoner’s counsel. There is a conflict of the evidence. The jury had the witnesses before them, and, as we must presume, after an impartial examination of the whole ease, and giving to the testimony of each witness the weight and credibility they believed it deserved, they felt compelled to conclude beyond a reasonable doubt that the prisoner was guilty as found by their verdict. We find no error committed by the court on the trial of the cause, and cannot interfere with the action of the court below in refusing to disturb the verdict.

The judgment is affirmed.

Affirmed.