Shelburne v. State , 111 Tex. Crim. 182 ( 1928 )

In his motion for rehearing appellant again urges many of the points originally relied on for a reversal. There is brought forward in a bill of exceptions which complains of the denial of a change of venue, the evidence heard upon that issue. This bill covers 229 pages of close, typewritten testimony, all of which has again been carefully examined in view of appellant's insistence. The present writer confesses inability to make a more careful or correct analysis of this mass of evidence than is contained in our original opinion. The view there expressed remains unchanged that the learned trial judge, in determining the issue on conflicting evidence, can not be held to have abused his discretion.

Appellant challenges the disposition made of his bill of exceptions No. 7. It consists only of a recital that Mrs. Lange, over objection, was permitted to testify that after her husband was killed, she was afraid of appellant. The remainder of the bill consists solely of grounds of objection urged. We are not referred to the statement of facts by any recital in the bill, in the absence of which we are not called upon to go to the statement of facts in aid of the bill. Such has been our uniform holding. It is conceivable that the case may have developed in such way that the evidence complained of became properly admissible. There being no recital in the bill from which we learn that the evidence was not pertinent, we must assume that the court ruled correctly. If we go to the statement of facts error in the court's ruling is not apparent.

We care to notice only one other point stressed by appellant in his motion and which was not discussed in the original opinion. By written objections to the charge appellant undertook to present legal issues upon whether the issue of manslaughter was raised by the evidence, and whether appellant was responsible for the act of Ike Shelburne, who was claimed by the State to have actually fired the shot which killed Lange, appellant's contention being that only a misdemeanor, to-wit: the whipping of Lange was contemplated. No such issue was raised by any evidence given by appellant or any of his witnesses. He denied any participation in the transaction. His whole defense was an alibi. It is appellant's claim that the issue was raised by the State through the testimony of the witness Mrs. Arnold, which in substance was that several months after the killing she heard appellant tell her husband that appellant and the other participants went to Lange's house to take him out and whip him, and when he was about to get away from them that Ike Shelburne shot him. The undisputed facts seem to settle the question presented against appellant. Three parties masked and at night went to deceased's house; as they approached him one of the three was carrying a pistol, the other two had flash lights. The one having the pistol was using and displaying it, and with it committed an assault upon deceased's wife who was attempting to protect him, and finally committed a deadly assault upon deceased with said pistol. Such assault, regardless of its result, having been with a pistol unlawfully carried at the time, was a felony. Art. 1151 P. C. reads as follows:

"If any person shall wilfully commit an assault or an assault and battery upon another with a pistol, . . . while the same is being carried unlawfully by the person committing said assault, he shall be deemed guilty of an assault with a prohibited weapon and upon conviction shall be punished by a fine not to exceed two hundred dollars or by imprisonment in jail not to exceed two years, or by confinement in the penitentiary for not more than five years."

So it clearly appears that the parties who approached deceased on the night in question were acting together and all three were knowingly participating in the commission of a felony with a pistol unlawfully carried. These facts are not disputed by any witness. Death having resulted while the parties were engaged in the commission of a felony by the use of a "prohibited weapon," the parties would be guilty of murder. There is no evidence raising the issue that the shooting of Lange was a mistake or an accident.

Aside from the principle just considered, it may well be argued that what happened was within the reasonable scope of the conspiracy. That general subject is discussed at length in the case of Serrato v. State, 74 Tex.Crim. Rep.,171 S.W. 1133, and Mitchell v. State, 36 Tex.Crim. Rep.. In the latter case approval seems to have been given to the holding in Williams v. State, 81 Ala. 1; 1 So. 179. We quote from that case:

"The question in this case, then, would seem to be whether, if five or six men combine together to invade a man's household, and they go there armed with deadly weapons for the purpose of attacking and beating him, and, in furtherance of this common design, all of the confederates being present or near at hand, one of them gets into a difficulty with their common adversary, and kills him, all may be guilty of murder, although they did not all entertain a purpose to kill. The question, we think, must be answered in the affirmative, in the light of both principle and authority. Every man has the right to defend his house against every unlawful invasion, and to defend his person, when within it, against every and all violence, without the necessity of retreat. The experience of mankind shows that very few men will fail to respond to instinct by exercising this right to the extent even of killing an assailant if necessary. When a mob, conspiring together unlawfully, go to a man's house to do any serious violence to his person, especially in the night-time, as here, they can expect nothing else than to meet with armed opposition, and the inference is not unreasonable that they intend nothing less than to oppose force to force, in the furtherance of their design. The natural and probable consequence of this is homicide, — either of one or more of the assailants, or of the party thus assailed, — and such homicide, when committed by any one of the conspirators, can be nothing less than murder in all who combine to commit the unlawful act of violence, especially if they be near at hand, inciting, procuring or encouraging the furtherance of the act of assault and battery."

In the present case the conclusion may well be drawn from the undisputed facts that the parties went to Lange's house with the purpose to take him out and whip him at all hazards, and to kill if necessary to prevent the thwarting of their plans. There is no evidence that the killing by one of the three was upon an independent design unknown to the others and not in contemplation of all of them.

The motion for rehearing is overruled.

Overruled.