Couch v. State , 103 Tex. Crim. 188 ( 1925 )

Appellant files an extended motion for rehearing taking issue with each ground on which we granted the state's motion for rehearing, and affirmed this case.

Paragraph five of the charge of the court is quoted in our original opinion and analyzed in our opinion on rehearing. When one on trial for manslaughter claims self-defense, it is so evident as not to need discussion that he can not be convicted unless the jury believed beyond a reasonable doubt that he did not kill in self-defense. The court in said paragraph of his charge had told the jury under what circumstances the killing would be manslaughter, and that if they believed beyond a reasonable doubt that the killing was so done "and that he was not justified in so doing," then to find him guilty of manslaughter. We cannot make clearer the proposition that this imposed no burden on appellant. If the court had told the jury that they must believe beyond a reasonable doubt that the defendant "was justified" in killing deceased — then, indeed, the accused would have ground for complaint — but none whatever when the court in compliance with his duty told them, as he did, that before they could convict they must believe beyond a reasonable doubt that he was "not so justified."

Appellant again urges that having given a charge on provoking the difficulty, the court should have given his special charge No. 5. In the main charge the court fully gives the converse of provoking the difficulty, and the jury were told that if they had a reasonable doubt as to whether the difficulty was provoked with any intention of killing or seriously injuring the deceased, or if they had a reasonable doubt as to whether the language or conduct of appellant was reasonably calculated to provoke deceased to attack him — in either event his right of self-defense would not be impaired. Special charge No. 1 told the jury that if appellant had ben informed that the deceased had been making scurrilous remarks concerning him and had threatened his life, he had the right to arm himself and seek an interview for the purpose of composing their differences.

The expression in our opinion as follows: "though apparently he was not restored to citizenship until 1920", seems to have been erroneous, but our view of the correctness of the court's action in the matter under discussion, viz: the reception of testimony regarding appellant's conviction for robbery and incarceration in the Arizona penitentiary, was in no way effected by said expression. We do not think said testimony related to a transaction too remote. The testimony was not objected to when offered. Witness Roberson swore on this trial that on a former trial of this case he testified that appellant had told him he had been convicted and served a term in the Arizona penitentiary. Appellant was pardoned out of said penitentiary in October 1912, and this homicide occurred in August 1920, seven years and ten months after the pardon. There is nothing in our opinion on a former appeal of this case (see 245 S.W. Rep. 692) that suggests that this evidence was inadmissible. It does appear from said opinion that a motion was filed by appellant seeking to have the court direct the state not to go into this and another criminal charge against the appellant, if he took the witness stand. The court below declined to act on the motion and appellant did not testify on that trial. In Davis v. State, 52 Tex.Crim. Rep., a conviction for crime six years before the crime for which the defendant was on trial, was held not too remote. In Scoville v. State, 77 S.W. Rep. 792, nine years was held not to be too remote. See also Richardson v. State, 91 Tex.Crim. Rep.; Bibb v. State, 86 Tex. Crim. 118.

The introduction of a picture of deceased taken about three years before the homicide, is again argued. The matter seems unimportant. No testimony is in the record showing any description of the picture, nor anything that could give the matter any importance, or from which this court could draw the slightest inference of injury. Before this court would reverse a case for an alleged error in the introduction of testimony, it must appear that we can perceive some injury to the accused. Matters merely erroneous will not suffice to reverse cases. Hofheinz v. State, 45 Tex.Crim. Rep.; Jordan v. State, 10 Tex. Crim Rep. 479.

The matter complained of in bill of exception No. 1 can not be construed into such a reference to a former trial as to make that fact known to the jury.

Provoking a difficulty can arise in any case where self-defense is relied on by the accused, if the facts are presented. We have no doubt of the propriety of a charge on provoking the difficulty in this case. The facts show that deceased was leaving the Damron hotel when appellant, according to his own contention, called to him and told him to come over there; as deceased approached with his hand in his pocket appellant ordered him three times to take his hand out of his pocket, then slapped him, and shot him. He claimed that after the third command to deceased, the latter shook his finger or fist in appellant's face and started to take his hand out of his pocket. If there arose from these facts any question of self-defense, based on a supposed attack by deceased, a jury question would thus be raised which could only be decided upon an appropriate instruction upon provoking the difficulty.

When the court gave the charge limiting the purpose of the admission of testimony regarding appellant's conviction of robbery in Arizona, this obviated the need for appellant's special charge No. 2.

The other matters argued in the motion have been considered, but no reversible error appears, and appellant's motion for rehearing will be overruled.

Overruled.