T. J. Cartwright v. State , 1884 Tex. Crim. App. LEXIS 139 ( 1884 )

Willson, JufitiE.

It was proper to permit the prosecution to prove that, a féw minutes after the Gills “were shot; the defendant and another man were seen at old man Gill’s house, and also to prove the language and conduct Of the defendant at that time and place. This testimony, as it is presented in the record, was as to matters which transpired directly after the shooting, and closely connected with it, constituting a part of the res gestae thereof. (Whart. Crim. Ev., sec. 262; Galbriath v. The State, 41 Texas, 567; McCall v. The State, 14 Texas Ct. App., 353.)

The law of principals in crime applies as well to manslaughter as to any other offense. There can be no accomplice to manslaughter, but several may act together in committing this offense, as in any other homicide. It was hot error, therefore, for the court to instruct the jury that the defendant might be convicted Of manslaughter, although he did -not himself inflict the wound which caused the death of the deceased. (Ogle v. The State, ante, p. 361.)

Upon the issue of self-defense the court charged as follows t “ The jury are further charged that if the killing was done in the necessary defense of the slayer or any of them, that is, to protect himself or themselves from immediate and imminent danger of death or great bodily harm from the violence of the deceased, which was not provoked or sought for by the slayer, and which could not be avoided by any other means except retreating, then it would not be an unlawful killing, but would bo justifiable homicide.” This was the only charge given upon self-defense. It was excepted to by the defendant at the time as incorrect and insufficient, and the defendant also asked special instructions intended to supply the defects and correct the errors complained of in the court’s charge, which requested instructions were refused.

It cannot be questioned that the evidence clearly raised the issue of self-defense. It was therefore essential to a fair and legal trial of the case that the court should fully and correctly instruct the jury upon this issue. This the court failed to do. If the defendant was in immediate and imminent danger of death or great bodily harm from the violence of the deceased, he was not required by law to resort to other means than killing his assailant, to protect himself. In such case the law justifies the assailed party in acting promptly and effectively by at once slaying his adversary. (Kendall v. The State, 8 Texas Ct. App., 569; Ainsworth v. The State, Id., 532; King v. The State, 13 Texas Ct. App., 277.)

Ebr does the law limit the right of self-defense, as does this charge, to actual danger of death or serious bodily harm. If the appearances are such as to create in the mind of the slayer a reasonable apprehension of death or serious bodily harm, and he acts under the influence of this apprehension, it is self-defense, although there was in fact no danger of his being killed or of receiving seriously bodily Injury. (Rodrigues v. The State, 8 Texas Ct. App., 129; Babb v. The State, Id., 173.) “ In homicide, and in other cases of violent assault, a danger which is apparently imminent is to be viewed, provided the person assailed honestly believes in its reality and imminency, as if it were actually real and imminent.” (Whart. Crim. Ev., sec. 69; Whart. on Hom., see. 606.)

Again, the right of self-defense, by the charge, is restricted to defense against the violence of deceased alone. Under the facts of this case it was error to thus restrict it. There were two other persons present, apparently acting with deceased, one of whom was armed with a gun. If these persons were acting with the deceased in an attack upon the defendant, or if they or either of them, made an attack upon defendant, deceased being present and acting with them in such manner as to make him a principal in such attack, or if the appearances were such as to cause in the mind of the defendant a reasonable belief, and did cause such belief, that the deceased was a party to the attack upon him, or which was about then to be made upon him, by all or either of said persons, then defendant’s right of self-defense would extend to the acts of each and all of the party, because the violence of one of them would be that of all. Thus, if Tom Gill violently assaulted defendant, or was in the act of doing so, and the deceased was present aiding in the said assault or encouraging the same; or if the appearances' were such as reasonably to cause defendant to believe, and he did so believe, that deceased was participating, or was about to participate, in such attack, then he would have the same right to defend himself against the deceased that he would have to defend against Tom Gill, although deceased may not have used, or attempted to use, any violence upon him.

Another portion of the court’s charge is as follows: “In considering the guilt or innocence of the defendant on trial, the jury are instructed that no act .on the part of Tom Gill, or others, would justify or excuse the killing of Mack Gill, unless such other party acted under the advice or under the control of Mack Gill.” This portion of the charge was excepted to by the defendant, and is manifestly and materially erroneous. If Tom Gill, or others, used unlawful violence against defendant, the deceased being present at the time, and his conduct and the circumstances of the occasion being such as to cause the defendant reasonably to believe, and he did so believe, that the deceased was acting together with Tom Gill or others in committing the violence, then the defendant would be justifiable in defending himself against each and all of the parties he believed, and reasonably had .cause to believe, were engaged in assailing him. It did not require the advice to, or control over, Tom Gill or others to make the deceased a participant in their acts and responsible therefor. If he acted together with them, and, knowing their unlawful intent, aided by acts, or encouraged them by'words or gestures in the commission of the violence, oi agreed thereto, then hé was a principal in the assault upon defendant, and subject to the same rules as if he was the person who actually committed the assault. (Penal Code, Arts. 74-78.]

There are other portions of the charge of the court which in our opinion, are not correct when applied to the evidence in this case, but we shall not take time to specify and discuss them. The objectionable portions of the charge were promptly excepted to by the defendant, and special instructions correcting some of the errors of the main charge were requested by the defendant, and refused. In our opinion the jury was not instructed in the law of the case, and for this reason the judgment must be reversed and the cause remanded.

We are called upon by a bill of exceptions to notice another matter which occurred upon the trial. Upon the conclusion of the argument of the counsel who opened the case on the part of the State, the audience, which was composed of some four hundred people, cheered and applauded the speaker. This was late at night and further argument was postponed until the next morning. The court did not reprimand the audience, or in any way express disapprobation of the improper demonstration, nor was the jury cautioned against suffering this conduct of the audience to influence their minds in the consideration of the case. On the next morning, counsel for defendant were permitted in their addresses to the jury to comment upon and condemn without restriction the occurrence of the night before. In reply to them, counsel for the State, in the concluding argument, alluding to the demonstration made by the audience said, “it was a spontaneous outburst of approval by the audience of this cause, after they had heard it truthfully represented by the State.” This remark was not reproved by the court, and still the jury were not admonished by the court to disregard this extraneous matter, and to guard themselves against being influenced by it.

It is unnecessary for us to determine whether or not we would suffer this conviction to stand if this bill of exception presented the only ground of reversal. It is enough for us to say now that we think the court should have taken prompt and decisive action on the occasion, and should have endeavored by its condemnation of the proceeding, and its admonitions to the jury, to prevent any prejudice to the defendant by such reprehensible conduct. And in this effort on the part of the court, counsel for the State should have united. As the matter is presented to us by the bill of exception, we cannot say that the defendant has had a fair and impartial trial upon the law and the evidence of the ease.

Because of the errors in the charge of the court, the judgment is reversed and the cause is remanded.

Reversed and remanded.

Opinion delivered June 21, 1884.