Lee v. State , 67 Tex. Crim. 137 ( 1912 )

Appellant was indicted for murder, tried and convicted of the offense of manslaughter and his punishment assessed at five years confinement in the penitentiary.

This is the second appeal in this case, the opinion of this court on the former appeal being reported in 54 Tex. Crim. 382.

1. Appellant in this case insists that the indictment charging him with murder in the first degree, and on the former trial having been convicted of murder in the second degree, which judgment was by this court reversed, he could not be again tried under that indictment. It is true appellant could not be again tried for murder in the first degree, but having been convicted on the former trial of murder in the second degree, and the verdict on his application having been set aside, he could again be tried on the indictment for murder in the second degree, and lesser offenses.

2. Appellant, by motion to quash the jury panel, and in his motion for new trial, again insists that the "jury wheel law" as passed by the Legislature in 1907 is unconstitutional. The law since the trial of this case by Act of the Legislature has been amended so as to meet all the objections made by appellant in his brief, and inasmuch as this question can not again arise we do not discuss nor pass thereon. In the former opinion of this court in this case the law was upheld, and it relating solely to a question of practice in the selection of a jury, and appellant does not state nor insist that other than a fair and impartial jury was obtained, in deference to the opinion of the court on the former appeal, we think it proper to follow that decision. If appellant showed or attempted to show he had been deprived of any right, or the jury, selected in the mode and manner it was, was biased or prejudiced against him, or that a different result might have been obtained had the jury been selected in another manner, we would investigate the question. Appellant has filed an able brief on the question of the constitutionality of the provisions of that law, but inasmuch as the trial court, in the selection of the jury, followed the decision of this court on the former appeal, we will not review the question in this case.

3. The facts are sufficiently stated in the opinion on the former appeal in this case and we do not deem it necessary to restate them, except in so far as it may be necessary to discuss the questions raised in the motion for new trial.

It appears that the district attorney, by questions propounded to the witness Frank Casey, sought to elicit that appellant, just a few moments prior to this difficulty, had a difficulty with Mr. Haney. The court sustained the objection of appellant, and the matter, as recited in the bill, presents no error.

4. It also appears that the State's attorney, after having been told certain pictures were not admissible in evidence, offered them in evidence, the objection of appellant being sustained. As the jury was not permitted to see the pictures, no harm could have resulted to appellant.

5. While defendant was on the witness stand testifying, on cross-examination, he was asked if he knew the State's witnesses Casey and Harmon, and if they were on friendly terms with him, to which defendant answered they were. The bias, prejudice or state of feelings of a witness towards a person on trial is always permitted to be shown. (Pope v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 611, and cases cited.)

6. Appellant testified that he was knocked down by deceased, and lost his watch, and he had been informed that Briggs Chumley had picked it up and brought it to the police station. Chief of Police Ray testified that Chumley had brought appellant's watch to him and delivered it. Appellant then sought to prove what Chumley said to Ray at the time he delivered the watch. This would be hearsay and not admissible.

7. It is also complained that Henry Harmon, who had been used as a witness by the State in making its case, after defendant had testified, in rebuttal was permitted to reiterate a portion of his testimony on a material point. This is hardly proper practice, but it is a matter within the discretion of the trial court, and only in a case of a gross abuse of this discretion would we be authorized to reverse a case on that account.

8. Appellant reserved a bill of exceptions to the following remarks of the district attorney: "In the closing argument of the district attorney he argued to the jury as follows: ``Gentlemen of the jury, after having done my duty, and after I impress upon you the facts in each case, in order that I may aid you, I hope that my right hand may shiver at my side before I will ever ask a jury to convict a man when the evidence does not show he is guilty, never, never. Gentlemen, gentlemen, I dismiss then whenever I have not evidence to convict in a case.'

"To which argument the defendant objected because it was improper for counsel to express his personal opinion and throw into the scales of justice arguments like that as his belief, to which the State's counsel then stated, ``I stated that unless I believed from the evidence in a particular case, . . .' to which defendant stated that was his objection, and thereupon, at the request of the district attorney, the court verbally instructed the jury not to consider his remarks and the State's counsel then turned and stated to the jury: ``I will repeat the statement as I thought I had made it, that never in any case will I submit to the jury a case where the evidence does not justify a conviction, never in any case will I submit it to the jury, unless the evidence justifies it. . . .'"

This presents no error as the court instructed the jury not to consider the first remarks made, and the latter remarks are unobjectionable.

9. In several paragraphs of the motion for a new trial appellant criticises the charge of the court on manslaughter. The charge is a virtual copy of the charge given by the court and quoted in the former appeal of this case, with the addition there suggested, the court in this charge instructing the jury: "The following are deemed adequate causes, an assault and battery, that is a blow or lick inflicted by deceased causing pain to defendant." The charge as given was approved with that exception, and we do not deem it necessary to discuss this matter further. The jury only found appellant guilty of manslaughter on this trial, and certainly appellant suffered no injury in that respect.

10. On the question of self-defense the court instructed the jury: "A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.

"If from the evidence you believe the defendant killed the said James S. Simpson, but further believe that at the time of so doing, the deceased had made or was making an attack on him which, from the manner and character of it and the relative strength of the parties and the defendant's knowledge of the character and disposition of the deceased, coupled with the threats of deceased at the time (if any), caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.

"In determining whether the defendant acted in what reasonably appeared to him to be his necessary self-defense, it is the duty of the jury to look at the transaction from what you believe from the evidence was the standpoint of the defendant at the time, and consider the same in the light of the facts and circumstances, as you believe they appeared to the defendant at the time, and not from any other standpoint; but it is for the jury to determine from the evidence what were the appearance to the defendant, and what the standpoint of the defendant was, and in what light he did in fact view the facts and circumstances at the time."

The only witness testifying who raised the issue of self-defense was defendant, and he testified: "Mr. Simpson (the deceased) knocked Chumley down, and I stepped up to him and said, ``Jim, don't do that,' and he hauled away and knocked me down; after hitting me and knocking me down, he advanced on me and throwed his hand behind him and said, ``I will just kill you, you son-of-a-bitch,' and as I was getting up I fired one shot and jumped to my feet and fired two more shots. I thought he was going to shoot — was going to kill me."

The charge above fully presented the issue of self-defense as made by this testimony, and as the State's testimony would show that the killing took place entirely under different conditions, the judgment is affirmed.

ON REHEARING. June 19, 1912.