Smith v. State , 1884 Tex. Crim. App. LEXIS 8 ( 1884 )

Hurt, Judge.

Under an indictment charging him with the murder of Robert F. Tamplin, the appellant was convicted of murder in the second degree, and was awarded a term of ten years in the penitentiary.

The facts immediately attending the homicide were substantially these: The defendant, having procured two buckets of water at a well a short distance from his house, was returning home with them on foot, when, at some point between the well and his house, and near a fence off the road, he was overtaken by the deceased, driving in a buggy. The deceased, following him in his buggy, cursed him en route, declaring that he would kill the defendant before evening, and denouncing him as a “ G—d d—d one eyed son of a b—h.” Before .reaching his house the defendant set his two buckets of water on the ground near the fence, and picked up two rocks instead, which he carried with him as far as his gate, where he dropped them and entered his yard. The deceased drove up to the defendant’s front gate, where he stopped and again cursed the defendant, and declared that he would kill the defendant that evening. The deceased then drove his buggy to a point a few steps below the gate, and proposed to hire a party present to hold his horses so that he could get out and shoot the “ d—d son of a b—h.” Failing in this, he turned his horses and drove back to the front gate, cursing the defendant, and saying that he would kill him then. The defendant, when the deceased turned back to the gate, went into his house and secured his double barreled shot gun, and with his wife returned to the yard. The wife at this time was standing in front of the defendant, and between him and the deceased. The deceased lowered his buggy top, and told the defendant’s wife, who was still standing before him, to get out of the way; that the defendant would dirt no more cotton for her. The defendant’s wife not obeying this command, the deceased repeated it, with the words:- “Get out of the way, you big bellied bitch; it is a pity to kill three to get one,” at the same time throwing his hand behind him and under his buggy cushion. The defendant then said to his wife: “ Get out of the way; don’t you hear Mr. Tamplin say he will kill us all,” and fired upon the defendant with fatal effect. This state of facts is not only deduced from the testimony of the witness for the State, but as well from that of four or five others who, at the time, were in full view of the homicide; nor is the correctness of this statement of the facts questioned from any source whatever.

It is a well-settled rule of law that if, at the time of the killing, the conduct of the deceased, viewed in the light of all the circumstances, was such as to create in the mind of the defendant a reasonable apprehension of death or serious bodily injury, the defendant would have the right to kill, whether the danger was real or apparent.

Was the conduct of the deceased in this-case of such character as was reasonably calculated to create in the mind of the defendant this apprehension of death or serious bodily harm? Could any other inference be drawn from his conduct than that he intended to murder the defendant? Was not this the -only reasonable conclusion which could be made from the facts ? If so, is it not reasonable and just to presume that the defendant believed his life to be in danger, and shot his adversary to save his life? If there be any force in facts, if there be truth in witnesses, if there be reason 'in man, the defendant certainly believed his life to be in extreme danger. Hot thus to believe under the circumstances of this homicide would argue him insane.

Do not the facts in this case bring the defendant clearly and fully within the rule stated above? If not, is it possible for a party accused of murder to make the rule a protection, notwithstanding the verdict of the jury? Or is this rule completely within the control of the jury, to be extended to or withheld from the defendant at their pleasure,,be the evidence what it may? We are of the opinion that the evidence in this case fails to show the defendant guilty of murder, but, to the contrary, if such be possible, makes a case of self-defense beyond any sort of question, and that the verdict of the jury is not supported by the evidence.

But it may be argued that, as the defendant had threatened the life of the deceased, therefore the verdict can be sustained. There is no proof that the deceased ever heard of the threats, and it is evident from what he said at the time of the killing that he did not assail the defendant because of the threats. He was breathing out threats against the defendant for having placed dirt on his (the defendant’s) wife’s cotton. ¡No allusion whatever was made by either party to the threats.

But concede that the threats prompted the deceased to do what ho did, will this deprive the defendant of the right of self-defense? Suppose A threatens the life of B prior to the day of the killing, and for these' threats B attacks A in such manner as is calculated to induce A to believe his life is in danger, will A, because of the threats, be cut off from his right of self-defense? Who will assert such a proposition?

If, by threats or otherwise, defendant intended to, and did, produce the occasion or difficulty, with a view of killing him, his right of self-defense is gone. But there is nothing of the sort in this record.

It may be insisted that the threats prove a homicide upon former grudges, and that therefore the defendant did not believe himself in danger, and that the killing was upon malice. This is in violation of one other rule, which is that the last provocation is to be presumed to be the moving cause, when left to presumption.

In the record there is some proof of malice, evidenced only by threats made some two or three weeks prior to the killing, and a state of facts tending with great strength to establish a killing in self-defense. Which theory is supported by the evidence—• that the homicide was upon malice, or was in protection of the defendant’s life? The last, we think, is most evidently sustained by the facts of the case. The former is not only unsupported, but is repelled by the facts—facts uncontroverted.

A full and very liberal charge was given to the jury by the learned judge, to which there cannot be urged an objection, save as to one matter. By the fourth subdivision of Article 597 of the Penal Code, insulting words or conduct of the person killed towards a female relation of the party guilty of the homicide is made an adequate cause. This was not given in charge to the jury. Did the evidence, or any evidence in this case, require this cause to be submitted to the jury? Unquestionably it did. What said the deceased? “Get out of the way, you big bellied bitch; it is a pity to kill three to get one.” Were not these insulting words; and were they not made toward the wife of the defendant, and in his immediate presence. If so, it was the duty of the court to charge the law applicable to this matter. This omission, however, was not excepted to at the time, nor a proper charge asked, nor was it made a ground for new trial, and therefore it is not revisable.

Opinion delivered January 26, 1884.

Because the verdict of the jury is not supported by the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.