Stephens v. State , 93 Tex. Crim. 164 ( 1922 )

Because the motion for rehearing is based largely on the contention that we should not permit a death penalty verdict to stand under the facts of this case we think it proper to set out the evidence more in detail than was done in our original opinion.

Appellant and deceased were both residents of the city of San Antonio. Deceased, with his family, resided in a house which was situated about fifty feet from a lot belonging to appellant, and upon which there was under construction a dwelling house. About a week antecedent to the homicide appellant went to the home of deceased and had a conversation with his wife. The fact that the conversation took place is undisputed. The daughter of deceased testified that appellant said someone had been stealing material from the building he was constructing, and that he intended to have every man, woman and child in the neighborhood arrested, but that if she would tell him who it was he would be more lenient.

Deceased's wife testified that appellant said if she would own up to it he would be lenient with her. She told him that her husband would return at six o'clock in the evening and that appellant could discuss the matter with him if he had anything to say. Appellant's version is that he went to her home and asked deceased's wife if she knew who had destroyed or taken the property; she replied that she did not; that he told her if she knew who it was or anything of the kind, if she would tell what she knew about it, and her children were parties to it and others were parties to it, that he would be more lenient with them: she replied that she knew nothing about it: that he then said: "I have a good mind to have every man, woman and child in the vicinity summoned before the grand jury and find out who it was." She said: "You may see my husband, he is home after six o'clock." Appellant, it appears, worked at the building every day during the interval between this conversation and the time of the tragedy, but that not until that day had he stayed until after six o'clock. Returning to his home on the day of the homicide and observing appellant was still at work, deceased went to the house and there the shooting took place. It is described by three eye-witnesses. Mrs. Zelios, who lived nearby, heard the shots, looked out and saw Finucane running. She said:

"I first saw him inside of the house through the window. He ran to the door. I saw him lose one step and go down because the house ain't got no floor. Then he tried again to himself to get to the door, and when he came out, Mr. Stephens came from behind him and shot him. He was ready to jump down to the ground. The back part of his body was towards Mr. Stephens when he shot him there on the front gallery. He just got down and run, tried to get to the house but he no reach to the house. He had his left hand on the upper front of his body, and his right hand down about the stomach. I don't know how many shots were fired; I only heard three. The first two shots were right together. The other was fired later after the deceased reached the door, just as he was ready to jump from the gallery."

The fourteen-year-old daughter of deceased, as well as his wife, testified that he was accustomed to come home at six o'clock and did so every evening after the controversy about the lost property. Describing the tragedy, the daughter said when her father arrived, he was dressed in a shirt and pants, and had his coat over his arm and a paper sack in his hand; these he laid down in his yard and went to appellant's house; that he walked in and said: "Good evening," and then said: "I hear you accuse my wife as being a thief." I will not stand for anybody to talk to my wife like that." Then a shot was fired. Using her language, she said:

"Then he commenced to jump over these sleepers and he got to the door there and fell through the floor, of these sleepers, and I saw Stephens step in front of the window where I had been seeing Daddy, and he shot him twice, then, and then Daddy climbed up from the sleepers and got out of the door, and he says, ``Get a doctor, get a doctor,' and went out from the door, and went out and fell in the street."

She further stated that when she heard the first shot she could not see appellant, but saw her father start to step or jump across the sleepers; that he got to the door and fell through the sleepers. She heard three shots fired. The deceased lived but a few minutes. On cross-examination she said, speaking of her father:

"I knew he was going to ask Mr. Stephens what he meant by saying that to mamma because he said so before. I knew what he was going to say. I stood there talking to the machine man. I was playing with a white rat. My father had his hands at his side when he was first talking, but when he said: ``I won't stand for anybody to talk to my wife like that,' he raised his right hand and extended forwarded with the first two fingers outstretched. He had nothing in it, but he did not keep his hand in that position until the first shot was fired. He took it down when he said that and moved it to his side. Then he turned and stepped from one sleeper to another until he got to the door, and he fell through these sleepers at the door inside of the room. There were two more shots fired when my father was through the floor. He was about six inches from the door, inside the house, when he fell through the floor, lacked six inches being to the door, when he fell between the sleepers."

Mrs. Finucane testified that on the day appellant accosted her about the alleged lost property, she related the matter to her husband upon his return; that she was in her house when the shooting took place, heard it, and ran to the front; that she saw her husband fall in the street and saw the appellant with a pistol in his hand. According to the testimony with reference to the wounds, given by the undertaker and the doctor who examined the deceased, one bullet entered the right side near the breast bone, ranged downward and passed out two inches to the left of the spine, one entered one inch to the right of the spine in the rear and was found about six inches below the navel. One wound was in the left arm and passed forward to the outer side of the elbow, and had its point of exit below the elbow and on top. One bullet went through the body. This entered the breast near the navel and passed out near the spine. There were two holes in the back, one an entrance wound and one an exit wound. The bullet that entered the back did not go through the body. The one that entered the front did penetrate the body. The undertaker produced three bullets at the trial and said that the one which went through the back was not found, but that the others were extracted from the body.

Appellant testified that he saw deceased hand his coat and package to his daughter and walk to appellant's house; that he entered the front gallery and was asked what he wanted, when he replied: "You accused my wife of being a thief." To quote appellant's testimony, he said:

"I say I did not." He says: ``I won't stand it, I won't stand it,' and kept advancing. I says ``Stop;' he didn't stop, but came on and started to reach back on his right side with his right hand and got it back as far as his hip-pocket. Then I jerked my gun from underneath my shirt and fired three times as quick as a double-action Smith-Wesson pistol could fire. At the time I fired these shots I was in my house near the extreme back end of it, about three feet from the south wall."

It affirmatively appears that deceased was unarmed. Appellant said he saw no weapons; that he supposed he shot the deceased in his back.

"I don't know he started to turn when I shot, and I shot, and as I was pulling the trigger he turned, and I suppose I shot him in the back. I did not shoot until after he reached for his pocket. The first shot was fired while he was facing me; the second shot, partly his side, and the third shot as he turned a little more. I did not move during the shooting. He did not fall through the sleepers at any time. He went out the door. I did not follow him. I did not shoot him after he stepped off the front gallery. I did not shoot him after he fell through the sleepers in front of the door. I shot him all three times before he got out on the porch, or on the two boards which were on the sleepers."

It is strenuously insisted upon the motion for rehearing that the evidence of express malice is lacking, and therefore is not such as justifies the extreme penalty. It has been held that in determining whether a case is bailable, that is, whether it is one in which the death penalty will probably be inflicted, the inquiry may be made whether there is evidence of express malice and a right to bail will turn upon the result of this inquiry. See Ex parte Cole, 89 Tex.Crim. Rep., 230 S.W. Rep., 175; Ex parte Townsley, 87 Tex.Crim. Rep.; Ex parte Young,87 Tex. Crim. 413; See also Liggon v. State, 82 Tex. Crim. 515. That rule has been adopted largely as a matter of necessity since the abolishment of the degrees in murder in an effort to establish a criterion whereby the judges may act with some uniformity in the matter of bail.

It is argued that when deceased entered the house where appellant was at work on the day of the homicide, he recalling his offensive conduct towards deceased's wife had cause for excitement, and no previous acquaintance or difficulties having been shown between the parties, it is insisted that appellant's conduct is referable rather to the impulsive and inconsiderate action due in part to the excitement aroused by the entry of deceased and his evident resentment at appellant's former conduct than to any previous ill-will of appellant towards deceased, and that the crime should be characterized by implied rather than express malice, and that under such circumstances this court ought not permit a death penalty conviction to stand. Reduced to its final analysis, appellant's proposition is that notwithstanding the Legislature has abolished the degrees of murder based on the distinction between express and implied malice, we should nevertheless apply the old law in determining whether a jury should have assessed the death penalty, and if we conclude that the evidence of express malice is lacking the verdict should be set aside, although the law as it is now written vests the jury with power to assess that penalty. In our judgment we are without authority to do this. We have a case before us where the jury resolved appellant's plea of self-defense against him; there is no element of manslaughter in it. This leaves a killing upon malice aforethought whether that malice be proved as an existing fact, or implied by the law from the absence of circumstances which would reduce it to manslaughter. The law provides that in such cases the jury may fix punishment at death, or confinement in the penitentiary for life, or for any term of years not less than five. In abolishing the degrees in murder the Legislature must have realized that they were clothing the jury with large discretion in fixing a penalty. In the exercise of that discretion the jury fixed appellant's punishment at death. We express no opinion as to our individual views about it. But if we thought it too severe, we would have no more legal right to set the verdict aside for that reason than we would any other verdict simply because the penalty assessed was more or less than we might think proper.

The motion for rehearing is overruled.

Overruled.