Gunn v. State , 95 Tex. Crim. 276 ( 1922 )

Appellant was convicted in the District Court of Bell County of murder, and his punishment fixed at ninety-nine years in the penitentiary.

The facts in this case constitute a tragic history. Appellant, the father of several children, married deceased, who was the mother of six children, and there were born to them five more. The children of each prior marriage seemed to have grown up and left the common home, except that some of the younger sons of deceased would occasionally return and cause much feeling in the family. The killing took place at the home of appellant and the deceased. No one was present at the time save the husband, his wife and the youngest son of the wife by her former marriage. This young man, whose name was Hobart Keaton, was also killed by appellant at the same time and apparently in the same transaction.

The theory of the defense was that if appellant did shoot and kill his wife, the shot was intended for Keaton, and that said shot was fired in self-defense against an unlawful attack by Keaton upon him. Treating the various objections in the order in which they appeared on the trial, we observe a number of bills of exception taken to events occurring in the formation of the jury. In our opinion none of said bills show any arbitrary and unauthorized refusal to sustain any challenge for cause to any particular juror, and the only question raised by any of said bills of exception calling for discussion on our part, is that complaining of the court's refusal to grant to appellant an additional peremptory challenge in order that he might exercise same upon the juror Swope. Eleven jurors had already been obtained. Appellant had exhausted the peremptory challenges allowed him by statute. He requested the privilege of exercising such challenge upon the juror Swope, which was denied. This bill of exceptions is very lengthy and sets out in extenso, the matters transpiring in the selection of each of the jurors down to and including those relating immediately to the selection of Mr. Swope.

The apparent purpose is to inform us of the reasons calling for the exercise of the prior challenges allowed by statute as peremptory. We think nothing in the voir dire examination of juror Swope shows him to be unfair or prejudiced, or in any way disqualified to give to appellant that fair and impartial trial guaranteed by the Constitution and laws. Unless we so believed, those things complained of in this and appellant's other bills of exception relating to the formation of the jury, would be of no moment. It must be shown in some way that in declining to grant him this additonal challenge, a objectionable juror was forced upon appellant, else nothing would be shown to us upon which we could base a conclusion of any injury. The matter is compained of in appellant's motion for new trial. To avail him upon such hearing or on appeal to this court, it must not only be made to appear that the refusal of the trial court to grant such request was erroneous, but also that it was such material error as was calculated to injure the rights of appellant. Art. 837, Vernon's C.C.P., sub-division 2; Leeper, et al. v. State, 29 Texas Crim. App. 72.

Appellant urges what he thinks to be error in paragraph 8 of the court's charge, same being raised by bills of exceptions Nos. 7 and 8. Said paragraph is as follows:

"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, J.N. Gunn, in the County of Bell and State of Texas, on or about the time alleged in the indictment, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury and not under circumstances reducing same to manslaughter as herein defined, with intent to kill, did unlawfully and with malice aforethought shoot and thereby kill the said Sarah Gunn as charged in the indictment, you will find him guilty of murder, as charged, and assess his punishment at death or by confinement in the penitentiary for life, or for any term of years not less than five."

It is insisted that this is too restrictive, in that it fails to tell the jury that the reasonable fear or expectation of death must be determined alone from the standpoint of the accused; and that it limits his right of self-defense to an attack by Mrs. Gunn alone, it being his contention that Hobart Keaton was making the main attack upon him, and that his right of self-defense should have been stated to exist against danger, real or apparent, from an attack by Keaton, or both Keaton and Mrs. Gunn. The rule is uniform that the whole charge must be looked to in determining the correctness of any given portion thereof. Paragraphs 15 and 16 of said charge are as follows:

"Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, J.N. Gunn, killed the said Sarah Gunn by shooting her with a pistol, but if you believe from the evidence, or have a reasonable doubt thereof that when the said Sarah Gunn was so shot, Hobart Keaton was making or was about to make an unlawful attack upon the defendant, which, viewed from his standpoint, and from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, real or apparent, and that acting under such reasonable expectation, or fear, the defendant shot at the said Hobart Keaton and while so shooting accidentally killed Sarah Gunn without intent to kill the said Sarah Gunn, you will acquit the defendant.

Or, if you believe from the evidence beyond a reasonable doubt that the defendant, J.N. Gunn, killed Sarah Gunn by shooting her with a pistol, but if you believe from the evidence or have a reasonable doubt thereof that when the said Sarah Gunn was so killed, she was making or about to make an unlawful attack upon the defendant, which, viewed from his standpoint and from the manner and character of it, caused him, the defendant, to have a reasonable expectation or fear of death or serious bodily injury, real or apparent, and that acting under such reasonable expectation or fear, the defendant shot and killed the said Sarah Gunn, you will acquit the defendant."

An examination of these paragraphs discloses that both of the objections of appellant to paragraph 8 are here obviated. The jury are told in each paragraph to view the matter from the standpoint of the appellant, and if so viewed it appeared that he was being attacked by either of said parties, and if the jury believed the danger from such attack was real or apparent, and that this caused him to commit the homicide, that he must be acquitted.

Appellant asked the court to give the following special instruction:

"Gentlemen of the Jury: You are charged that if from the evidence you find that J.N. Gunn was the husband of Sarah Gunn and was in possession of the house and premises where the homicide occurred and if you further find from the evidence that Hobart Keaton was over 21 years of age at the time of the homicide, then you are instructed that the defendant had the right to request Hobart Keaton to leave his house and premises and if Hobart Keaton refused to leave defendant's home and premises after such request, if same was made by defendant, then the defendant would have the right under the law to use such force as was reasonably necessary to eject him therefrom."

The refusal of this is made the subject of a bill of exceptions. In the main charge we find the following:

"You are charged that if the defendant forbade Hobart Keaton from entering his, the defendant's home or premises, or forbade the said Hobart Keaton from remaining on the same or ordered him to leave the same, then the defendant would have the right to use such force as would be necessary to put the said Hobart Keaton off the said premises."

There was no question but that it was shown without dispute that the premises where the killing occurred belonged to appellant, and also that Keaton was over twenty-one years of age, and in our opinion the giving of said special charge was rendered unnecessary in view of the last quoted part of the main charge.

We find ourselves unable to assent to appellant's contention that the law of self-defense as applicable to the facts, was not given to the jury. In addition to paragraph 15 and 16, supra, the court charged the jury in paragraphs 18 and 19 of the charge as follows:

"So, in this case, if you find from the evidence that the deceased, Sarah Gunn, or Hobart Keaton, had made threats against the life of the defendant, or to do serious bodily injury, and that the same came to the ears of the defendant, or he was informed thereof, and that he believed the said threats, if any were made, and if you find from the evidence, or have a reasonable doubt thereof, that at the time of the shooting of Sarah Gunn by the defendant, if he did shoot her, she or Hobart Keaton made any gesture or act or both, indicating to the defendant that she and Hobart Keaton or either of them were then and there in the act of making an attack upon the defendant, or putting into execution any threats that might have been so made, which from the manner and character of it and the defendant's knowledge of the character and disposition of the said Sarah Gunn or Hobart Keaton, caused him to have a reasonable expectation or fear of death or serious bodily injury to him at the hands of Sarah Gunn and Hobart Keaton or either of them, viewed from the defendant's standpoint at the time, then the defendant had a right to act on appearance of danger, and if under such circumstances he shot at Hobart Keaton and that he accidently and without intent to kill Sarah Gunn, did kill her by the shot fired at Hobart Keaton under such circumstances, then such killing of Sarah Gunn would be justified, and you should acquit the defendant and say by your verdict, ``not guilty.'

Or, if in this case you find from the evidence that the deceased, Sarah Gunn, had made threats against the life of the defendant, or to do him serious bodily injury, and that the same came to the ears of the defendant or he was informed thereof, and that he believed said threats, if any were made, and if you find from the evidence or have a reasonable doubt thereof that at the time of the shooting of Sarah Gunn by the defendant, if he did shoot her, the said Sarah Gunn made any gesture or act or both indicating to the defendant that she was then and there in the act of making an attack upon the defendant or putting into execution any threats that she might have made, which from the manner and character of it, and defendant's knowledge of the character and disposition of said Sarah Gunn, caused him to have a reasonable expectation or fear of death or serious bodily injury to him at the hands of Sarah Gunn, viewed from the standpoint of the defendant at the time, then the defendant had a right to act upon such appearance of danger and if under such circumstances he shot and killed Sarah Gunn, then such killing of Sarah Gunn would be justified and you should acquit the defendant and say by your verdict, ``not guilty.'"

Nor do we think the charge open to the objection that it limits appellant's right of self-defense to the existence of actual danger. We have set out paragraphs 15 and 16 in which the court in terms told the jury that he might defend against apparent danger, and it will appear from paragraphs 18 and 19 last quoted that the jury were told that he might defend against the reasonable appearance of danger.

By his bill of exceptions No. 3 appellant complains that the court did not charge the presumption arising from the use of a deadly weapon as set forth in Article 1106, Vernon's P.C. Exception was taken to the main charge for failing to set forth said presumption. The contention that this should have been given in the charge is based on appellant's testimony. He swore that just pior to the homicide his wife and Hobart Keaton were standing at a wood-pile, and that he told Hobart he wanted him to leave the premises, and the latter said he had come for some money owed him by the appellant and one Wooley and was not going until he got it; that when he came back presently from the toilet in the yard to his kitchen, Hobart was standing there and after some conversation Hobart pulled a pistol and threw it down on him, and that he pulled out his pistol and shot at Hobart. He said that Hobart began to back and backed through the kitchen and dining-room and across the back porch, appellant following him, and that as Hobart was in the act of backing through the outside door of the porch appellant fired at him, and when he did so he saw his wife fall, and that Hobart continued to back, appellant following him, and that in this relative position they went some two hundred feet or yards, Hobart going forward part of the time and backward part of the time, and that Hobart picked up a stick and started toward appellant, and that he shot and killed him. Appellant said he did not observe Hobart's pistol after he got past the wood-pile. In one place in his cross-examination appellant used the following language: "He backed out through the dining room and then on the screened porch, and when we got out on the porch he was still backing and he still had that pistol in his hand and it wouldn't work." Art. 1106, Vernon's P.C., is as follows:

"When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury."

Our analysis of the facts above stated does not lead us to conclude that Article 1106 should have been given in charge. To warrant the assumption as a matter of law that the design of deceased was to kill, the facts must show the weapon used by him to be one calculated to produce that result. This question cannot be determined in any individual case from the sole view-point of the inherent character of the weapon claimed to be in the hands of the deceased. This court has often said that certain weapons used in cases then before the court, were not deadly per se. Branch's Ann. P.C., pp. 934-935. These include an axe, a knife, a chair, a loaded walking-cane, a fence pole, a rock, an iron pipe, a stick of cord wood, and firearms when used other than as firearms. Let us go further. One who draws a weapon on another may be convicted of some grade of assault. If such weapon be shown to be a deadly weapon and it appear that the intent of the accused was to injure but not to kill or maim, he might be convicted of aggravated assault under the 8th subdivision of Art. 1022, Vernon's P.C. Though the weapon be one with which death might be inflicted, yet if the intent of the accused be only to alarm, his guilt would be but simple assault under the 3rd subdivision of Art. 1013, Vernon's P.C. Jackson v. State,90 Tex. Crim. 369, 235 S.W. Rep. 882. In McCutcheon v. State, 49 Tex.Crim. Rep., the accused pointed a gun at prosecutor threatening to shoot. The facts showing only an intent to alarm, we held the case one of simple assault. In Ray v. State, 21 S.W. Rep. 540, the accused had a Winchester rifle and demanded a retraction from prosecutor, and not being satisfied with the speed with which the retraction was made, he threw a shell into his rifle. He was held guilty of simple assault. In Hall v. State, 105 S.W. Rep. 816, we held that the use of a loaded Winchester rifle was but a simple assault when the purpose of such use was to alarm. In Sheffield v. State, 62 Tex.Crim. Rep., the accused presented a shot gun at prosecutor, but did not fire same. We reversed an aggravated assault conviction, holding guilt to be but of simple assault. The lamented Judge Davidson said in the opinion:

"As used by appellant, the gun was not a deadly weapon; it was not fired, nor was it used to strike with; no injury was inflicted. In fact, all that was done by the accused was to present the gun in a threatening manner under the circumstances already detailed. Under this character of evidence, and under our statute and decisions, we are of opinion this woud not be more than a simple assault from the State's standpoint."

This language is applicable in the instant case. Taking the situation as most strongly stated by appellant and it appears that deceased drew a pistol and threw it down on him. The pistol was not fired, nor is there evidence to justify the conclusion of any effort, on the part of deceased to fire same. If the weapon was snapped, it is not disclosed; if the trigger was pulled by deceased, that fact is not stated. We quote more fully from appellant's statement of what occurred when he came into the kitchen of his house immediately before the shooting began, as follows:

"And, he said, ``By God he come after that money and he pulled his pistol out, this pistol is the one you show me. We were in the kitchen at the start, and I was facing him and he was facing me and he got out his pistol first and threw it down on me. I don't know whether it would shoot or not. He did not run, but he backed. He wasn't the running kind, but he backed. I reckon his gun wouldn't shoot. I shot at him, but I don't know where the bullet went. I haven't been back in the house since. I don't know whether I shot at his head and shot a little high or not. He didn't run even after I had shot but he backed. I couldn't tell you how fast he backed. I don't know how many times I shot, he kept backing and looking at me and he kept backing through the kitchen and I followed him. I don't know whether I shot any more or not at him. I don't know how many times I shot and I don't know why I shot and why I didn't shoot again. I shot as fast as I could get my gun to work and he backed out through the dining room and then on the screened porch and when we got out on the porch he was still backing and he still had that pistol in his hand and it wouldn't work. He is an expert with a pistol, but he might have got excited. I don't think he was the kind that generally got scared though but he backed all the way out through the kitchen and through the dining room and across the porch and backed out there and opened the screen door and never turned his back to me even then and just as he went out the screen door I shot at him. I don't know whether I shot more than twice or not. I don't know how many times I shot. The first thing I saw after I had shot at him he went through the screen door my wife was falling backward."

True, in one place appellant spoke of deceased as "trying to shoot me," but nowhere did he disclose any facts justifying this statement further than that deceased pointed the pistol at him. The trial court, as set out above, rightly gave the jury the law of self-defense against an attack on the part of Hobart Keaton, or of deceased, or both, as well as of a threatened attack by either or both, and this gave to appellant every opportunity for acquittal which is supported by the facts in evidence. From the fact of the drawing of a pistol by deceased, which was not fired while its possessor was backing through two rooms and across the porch, for this court to assume as a matter of law that the design of deceased was to kill, would be wholly unwarranted and seemingly in direct contravention of the holdings in the cases above mentioned. Said authorities seem to demonstrate that from the mere having in his hand a pistol or a gun, the design to inflict death cannot be inferred as a matter of law.

Our conclusion is that the facts fail to demonstrate that deceased was making an attack on appellant with a weapon which as a matter of law was calculated to produce death at the time appellant shot and killed his wife, and that the law applicable to his defense as supported by the facts, was fully given.

We are unable to see just how the trial court could have fairly submitted the law applicable to the issues of fact arising in this case, without submitting all the law relating to the killing of Hobart Keaton in the event he had received the bullet which killed Mrs. Gunn. Appellant swore that he did not intend to kill his wife, and that he shot at Keaton when he saw his wife fall. His whole defense was that he was acting in self-defense against Keaton. His entire conduct, according to his own statement from the beginning of the fatal difficulty in the kitchen until young Keaton fell dead in the field, was the result of his attitude toward and difficulty with Keaton and that of Keaton with him. We see no error in the charge of the court submitting the law of guilt vel non of appellant herein, predicated on the kind and degree of offense which would have existed had Keaton been killed by the shot that took the life of his mother.

The injury of witnesses for appellant relative to political affiliation of such witnesses with appellant, or that other persons whose interest in his behalf appears were also members of the same political party or candidates of said party for office, would not seem susceptible of harmful effect but rather to fall within that rule allowing legitimate exploration of those matters indicating the friendship or leaning of witnesses and those associated with them, toward any party or issue involved. We find nothing in the cases cited under this contention of appellant, holding a contrary view.

We believe that the rights of the appellant to act upon the theory that a threatened attack had begun, were fully guarded by the charge on that issue as above set out, and that same was as applicable when some or all of the threats were made to the accused direct as when some or all of them were shown to have been merely reported to him. If he heard them, or if he heard of them, and believed what he heard, he would have the same right and no greater to act in self-defense in either instance. We have examined the authorities cited by appellant and find in none of them any distinction between the right of the accused when the threat is made to him, and such right when the threat has been reported to him.

We do not think the charge open to the objection that it is too restrictive in telling the jury what they may consider in determining the sufficiency of the provocation to produce passion which would reduce the killing to manslaughter. While it is true that the court mentioned the past conduct of both Hobart Keaton and Mrs. Gunn in referring to such matters, we find in the same paragraph of the charge the jury were told to consider in that connection all the facts and circumstances in the case. We find nothing in comparing the charge given in this case with those in the authorities cited which would lead us to conclude that before us to be erroneous. We do not think any error appears in refusing any of the special charges in this regard.

The State was allowed to show the position and surroundings of the body of Hobart Keaton when found after the homicide. Objection to this testimony appears in various bills of exception. The State's contention, and indeed the testimony of appellant himself, was that there was a continuous transaction without let or stop from the inception to the end of the tragic affair. Appellant testified that from the time he went into his kitchen and the pistols were drawn, that he pursued Hobart Keaton without any apparent change in the attitude of the parties until Keaton was shot and killed, and that the death of his wife resulted from a shot fired at Keaton during their continued movement. The State's theory seems to be that appellant killed his wife and then pursued and slew the witness to such killing, and that the transactions were so closely related from every, standpoint as to become res gestae of each other. We believe under any theory of the evidence that the entire circumstance was so closely related in point of time and continuity of action as to make it but one transaction, and that all evidence was admissible to show how or in what manner each successive step of said transaction did in fact take place. The beginning and ending of the unfortunate affair were but a few moments apart. Appellant swore that he acted throughout with but a single purpose, — to save his own life; and the State's claim was that he did in fact act throughout with but a single purpose, but that it was murder.

There are other matters presented in various bills of exception which have been examined by us and in none of which we find anything to lead us to conclude that this case should be reversed. An extended narration of the facts would serve no useful purpose. The unfortunate history of the marital troubles of appellant and his wife, and the growing feeling of irritation between them leading to their separation; the matters connected with the settlement of the divorce case brought by the wife, and the various difficulties between the parties, would seem to shed no light upon the real issues involved in the decision of this case. There was evidence before the court of ill-feeling on the part of appellant toward his wife, and of statements which might be taken as threats on his part against her. A narration of these matters would not clarify any point discussed by us and we omit same.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. May 23, 1923.