Warthan v. State , 41 Tex. Crim. 385 ( 1900 )

Appellant was convicted of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of twenty years; and he prosecutes this appeal.

Appellant placed George McBride on the stand as a witness in his behalf, and after his examination in chief the State asked him in regard to a conversation he had previously had with the district attorney, and among other things, this question was propounded: "Did you not tell me [meaning the district attorney] during the last term of this court, and a month or six weeks after Barney Gray was killed, that the Warthans had come to you to try to get you to help Will Warthan out, by swearing falsely, and said, if you would do so, that they would help your brother Jim McBride out; and did you not tell me [meaning the district attorney] at that time that you told them that you knew nothing that would help Will Warthan, and was not going to get mixed up in the matter; and did not the district attorney then ask you which one of the Warthans made you this proposition, and did you not then tell the district attorney that it was Mrs. Warthan, defendant's wife?" This question was objected to as being irrelevant and as being hearsay; the defendant not then being present, and not being bound by any conversation occurring between the witness and his wife. It appears that this objection was overruled by the court, and the witness answered in the negative; that is, that he had no such conversation with the district attorney. Clearly, the question here asked was inadmissible, as it sought to elicit matters purely hearsay, — the defendant not being present at the time; and, had the witness answered in the affirmative, it would have been error. But the witness denied any such conversation. While the court should not have permitted the question, yet the mere asking of the question, when answered negatively, we do not believe was calculated to prejudice appellant, — certainly not to that extent requiring a reversal of the case.

During the closing argument for the State, the private prosecutor, representing the State, used the following language, to wit: "That Jim McBride, a witness for defendant, had lied like a tombstone; that they lied more than any other inanimate objects; but that there was one that did not lie, and it was the plain shaft that was reared to poor, humble Barney Gray, back in old Mississippi, and which had upon it, ``Murdered at Annona, Texas, on October 22d 1898,' — if the facts be true." While it is sometimes difficult to determine the latitude which will be permitted in legitimate argument, we do not believe it is ever permissible to go out of the record, and to state facts, and not deductions merely from facts proven. In this case a fact was stated by counsel, not in evidence; neither could it have been. It occurs to us that the court should have reprimanded counsel, and have instructed the jury to disregard the statement. However, no charge was asked in this case on the subject, and the current of decisions indicates that the proper practice would require that a written charge should be asked and refused, before this court would make the illegitimate argument the basis for reversal. Certainly, before we would feel called on to interfere, it must be shown that there was a very gross violation of the right of legitimate argument, and that such violation was calculated to impair or injure appellant's rights. Young v. State, 19 Texas Crim. App., 536; Matthews v. State (Texas Crim. App.), 38 S.W. Rep., 172; Gilmore v. State, 37 Tex. Crim. 178; Norris v. State, 32 Tex.Crim. Rep.; Pennington v. State (Texas Crim. App.), 48 S.W. Rep., 507.

Appellant, by his third and fourth bills of exception, complains of the action of the court in refusing to give certain requested instructions. The court, however, certifies that no written instructions were requested, and the suggestion of such instructions was only made in the argument of counsel for appellant. Appellant further complains in his motion for new trial that instructions were not given by the court upon the subjects indicated in said bills. If the evidence raised the issues embodied in said bills, and same was not covered by the charge of the court, then appellant has some grounds of complaint. The first of these bills suggests, in substance, that appellant had a right to arm himself with his pistol to protect his place of business and suppress a breach of the peace, and order deceased or others out who were making such disturbances, and to use such force as was necessary to put them out, and that he could only be held amenable for the offense in case he used more force than was necessary. The court gave a charge on self-defense, which we think covered this phase of the case as presented by the evidence. Bill number 4 complains of the action of the court in failing to charge the jury in regard to the use of the pistol by defendant; that is, if the jury did not believe that defendant by the use of the pistol intended to kill deceased, that defendant could not be convicted of either murder or manslaughter, unless the injury inflicted upon deceased was inflicted in a cruel manner, or unless they believed from the evidence that there was an apparent intention on the part of defendant at the time of inflicting the injury to kill deceased, etc. The court charged on negligent homicide, and also on aggravated assault; and, in our opinion, said charges presented the law of the case, as applied to the evidence. It is also complained that the court's charge on negligent homicide was error, as being too restrictive; confining, as it is claimed, the accident to the defendant alone, and not combining his acts with the pistol with the act of the deceased in striking the pistol in the scuffle. We do not believe this criticism of the charge tenable. If there was any negligence in the case, it was the negligence of the defendant in having and using the pistol as he did, and not his negligence combined with that of the deceased.

Appellant further assigns that the court erred in its charge on manslaughter; the contention being that the court's charge was entirely too general, and that it failed to present to the jury the only adequate cause shown by the evidence. The court gave a charge to the jury on manslaughter, which, after containing certain statutory provisions in reference to passion and adequate cause, instructed the jury, substantially, that the provocation must arise at the time of the commission of the offense, and that any circumstances or conditions which would arouse passion in the mind of a man of ordinary temper, sufficient to render a person incapable of cool reflection, would be adequate cause, and that the jury could look not only to the provocation at the time, but to all the facts and circumstances surrounding the parties which might have a bearing on the provocation at the time. Now, the contention of appellant is to the effect that the only evidence requiring a charge on manslaughter consisted in the testimony of the defendant himself and another witness, who stated that, just prior to the shooting, deceased, who had been ordered to get out of the house, advanced towards defendant and struck him a blow in the breast, and that the court, on this testimony, should have pertinently instructed the jury that, if they believed from the testimony that deceased, prior to the shooting, struck defendant a blow which caused him pain, and if they believed his passion was thereby excited, and he was rendered incapable of cool reflection, and under such circumstances slew deceased, then to find him guilty of manslaughter. We understand it to be the duty of the court, in charging the jury, to instruct them upon the very phase of the case suggested by the testimony. The only issue presented by the evidence requiring a charge on manslaughter was the provocation which arose at the very time of the homicide. This provocation was the blow which, according to the testimony of defendant and another witness, deceased struck him when he commanded him to cease the disturbance and leave his premises. Our statute makes a blow under certain conditions, adequate cause to reduce a homicide to manslaughter. The blow must cause pain, and must also engender passion which renders the mind incapable of cool reflection. Now, while it is true that the charge of the court was comprehensive enough to include the adequate cause here presented, was it sufficiently pointed to direct the attention of the jury to the very act of the deceased on which appellant predicated his defense of manslaughter? We think not. If the jury had been told that, as a matter of law, a blow which caused pain was adequate cause, this obstacle would have been removed from their pathway; and then it would have only been necessary for them to find that the blow was struck, and that it caused pain which rendered the mind of defendant incapable of cool reflection. As it was, they were left, without any suggestion from the court, to determine the matter of law in the first instance. See Wolfforth v. State,31 Tex. Crim. 387; Bracken v. State, 29 Texas Crim. App., 362. It has been held in a number of cases, and is the law in this State, that there may be adequate causes to reduce homicide to manslaughter, outside of those enumerated in the statute, or the provocation at the time may be intensified by matters occurring before that time, and in such a case the charge of the court should instruct the jury that they are authorized to consider such matters. But whether adequate cause is a matter of statutory definition, or is constituted by causes not enumerated in the statute, still the adequate cause is always a matter of law; and while in some cases it might not be necessary for the court to group the testimony, and put it to the jury as adequate cause, still, in the view of the writer of this opinion, whenever this can be done it would be the better practice to do so, and especially where the evidence shows one of the causes enumerated by the statute. It has been suggested, in view of our recent statute, which does not authorize us to reverse a case unless it be shown that the charge in question was calculated to prejudice his rights, that, no prejudice being shown, this cause should not be reversed. If there was no question as to this matter (that is, if we could accurately decide that the failure of the court to charge upon the particular phase of the case presented by the testimony was without prejudice to appellant), then the contention would be sound. But, as stated before, we are unable to decide that the jury knew, as a matter of law, that a blow inflicted on defendant, which caused pain and which provoked passion, was adequate cause to reduce the homicide to manslaughter. By the charge of the court the onus was cast upon them not only of ascertaining the other facts connected with this defense, but also of finding out the law on this subject. For aught that we know, the jury may have found that deceased struck the first blow, and that this caused defendant pain, and that his mind became excited, and was rendered incapable of cool reflection, and then shot and killed deceased; but they may not have believed that the assault of deceased was adequate cause, and so found him guilty of murder in the second degree. We would not be understood as holding that, under the facts, the jury were not authorized to find defendant guilty of murder in the second degree; but we do hold that, under the peculiar state of facts proven on the trial, defendant was entitled to a charge on manslaughter, presenting the very phase of the cause on which he relied, and that the general charge given on this subject was not sufficient. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.