Milrainey v. State ( 1894 )

Appellant was convicted of murder in the second degree, and his penalty assessed at fifteen years.

We think the court erred in refusing to permit the defense to prove by the witness A.B. Harris the facts of the rental contract by which appellant claimed possession of the land in dispute. Appellant's right to the said land was one of the principal grounds of the defense. No witness knew the facts of renting except appellant, Harris, and deceased. The appellant testified to them. Harris was placed on the stand to impeach appellant on a single matter. Appellant sought to corroborate all he had stated about the contract, but the court ruled it out, because the defense had closed except in rebuttal, and also refused to allow its introduction as original evidence. When a matter has been fully investigated, and testimony is again sought to be introduced by one who has closed his side, leave to do so may be refused by the court. Still, the court should even then act cautiously in excluding offered testimony, especially in the graver crimes. But where, as in the case at bar, the only testimony as to the rental contract was appellant himself, and the court, by its charge, hinged appellant's guilt on his right to the land, it would seem that it was necessary to a due administration of justice to permit appellant to corroborate his own evidence by said witness. Code Crim. Proc., art. 661.

Again, we think the thirteenth assignment is well taken. The twenty-fourth and twenty-fifth paragraphs of the court's charge instructed the jury, in effect, that a person's own original act, when unlawful, limited his right of self-defense; and if he killed another in self-defense while engaged in a felony, it would be murder, but if engaged in a misdemeanor, it would be manslaughter. If the defendant provoked the difficulty with intent to kill Parker, and Parker, in consequence, made a slight assault on defendant, who thereupon killed him, it would be murder. If, however, defendant provoked the difficulty without intention of killing, yet, suddenly and without deliberation, killed Parker, it would be manslaughter. The last proposition is incorrect (Willson's Crim. Stats., art. 1024); but conceding it to be law, it is certainly difficult to see what connection either paragraph has with the case at bar. There is no evidence that appellant, at the time of the homicide, was engaged in a felony or misdemeanor, or that he provoked the difficulty either with or without an intent to kill. The uncontradicted testimony clearly shows that appellant was at the time of the difficulty upon his own land. He had rented it, and had made a peaceful entry thereon with his plow and team, and was engaged in working it. The evidence further shows that, armed with a butcher knife carried concealed in his right boot, the deceased went into the field where appellant was plowing, talking very loudly, and, as appellant states, ordering him to quit the field, or he would kill him, and was within five feet of appellant when he was killed; appellant shooting him three times, the first shot, as appellant states, being fired as the deceased was reaching in his right boot, saying: "I'll kill you; God damn you, I'll kill you." We presume the court must have charged the jury upon the theory that appellant's going upon the land was a provocation to the deceased. But surely one going in good faith to work upon his own premises could not be said to be provoking a quarrel, or engaged in a misdemeanor or felony, even though he may have had reason to believe that his presence on the land might be offensive to another. There was no evidence that appellant went on the land to taunt or provoke the deceased, for the purpose of killing, or any other purpose, as suggested by the charge; but the evidence clearly shows that the time had come, if ever, for appellant to have asserted his rights and hold to his possession, which the deceased, aided by Harris and McCorley, was trying to take from him. The charge was inapplicable and erroneous. Ball's case, 29 Texas Crim. App., 107.

The same objection lies to paragraphs 26 and 27 of the charge. They are predicated upon theories of the court that find no support from the evidence in the case. There is no testimony tending to show that appellant "relinquished, abandoned, and surrendered the land to Harris," who, in turn, released his right to Parker, who thereby was reinvested as owner with right to eject appellant when he trespassed on the land. Nor is there any testimony tending to show that the appellant after renting said land surrendered his rights in the same, and Parker, being reinvested with the right to rerent the land, had rented it to McCorley, who was in peaceable possession of the same. Nor is there any ground for the suggestion of the court that Parker had reserved the right to enter at will upon the land rented to McCorley. On the contrary, the evidence shows that appellant insisted on his rights; that he never abandoned his claim to Harris, Parker, or any one; but that, after making the contract with Harris, with the knowledge and consent of deceased, who was the owner, and after building a corn crib and moving his corn on the place, and arranging for board with Harris, Parker, the deceased, determined to get rid of appellant. Harris was induced to assist in the effort. The matter between appellant and Harris was then submitted to arbitrators, who decided appellant was entitled to the land. Notwithstanding this, Parker endeavored to dispossess appellant by renting the land in dispute to one McCorley, who knew appellant's rights in the premises. McCorley went upon the land and began to prepare it for cultivation, when appellant drove his plow and team on the land and began plowing it. Deceased then attempted to eject him. McCorley saw appellant plowing, but did not attempt to interfere or object. He did not witness the shooting, being prevented by an intervening rising ground.

The difficulty in giving charges of the character here discussed is, that they frequently operate, whether correctly or not, as suggestions to the jury of the views entertained by the court as to the defense in the case, and lead them to accept as true a theory which has no other foundation than judicial incredulity and suspicion.

But, while the charge of the court was voluminous and presented issues not raised by the testimony in the case, we think the court erred in not presenting the question of manslaughter in connection with appellant's right to the possession of the land. It was in this connection that he charged fully on self-defense, but he should have gone further and submitted manslaughter from the same standpoint. Even when it may not justify the taking of human life, an attack on one's property is justly regarded as a great provocation and constituting adequate cause. The determined conduct of deceased in seeking to drive appellant from the land in defiance of right and good faith was well calculated to arouse the passion and resentment of a person of ordinary courage and spirit. Appellant was certainly entitled to a more specific charge on manslaughter than the statute.

We do not think the evidence supports the verdict. There are but three persons who witnessed and testify to the shooting, the appellant being one of them. The appellant states, that deceased came up to his horses, ordering him to get out in the road or he would kill him; that he caught the horses by the bits and pushed them to the road, repeating his threats; that he, appellant, thereupon pulled the horses back and told deceased to let them alone; and deceased stepped back from the horses' heads and reached down into his right boot-leg, with his left side towards appellant, exclaiming "I'll kill you; God damn you, I'll kill you;" and appellant drew his pistol and fired; that when appellant fired the last two shots deceased raised up straight and threw up his hands and staggered, etc. Appellant states he fired three shots. On the other hand, Matt James and Andrew McDonald, witnesses for the State, who claim to have witnessed the whole difficulty from different points 200 yards off, deny that deceased stooped down, but testify he was standing up facing appellant when the shots were fired, but that only two shots were fired by appellant, and none were fired after deceased fell. The physical facts tend strongly to corroborate appellant, and contradict or impair the statement of said witnesses that they saw the whole difficulty. The evidence clearly shows there were three bullet holes in the body of deceased — one below the right nipple, one below the left nipple, the third entering just above the left shoulder blade, ranging downward in the body and towards the backbone. The two last shots were fired in rapid succession, and it is probable that the witnesses saw the last two and not the first.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.