Stevenson v. State , 1885 Tex. Crim. App. LEXIS 44 ( 1885 )

Hurt, Judge.

Appellant John Stevenson and one Joe Hunt were jointly indicted for the murder of Joe Holmes. A severance being granted, Stevenson was tried and convicted of murder of the second degree, his punishment being assessed at five years’ confinement in the penitentiary. (The Reporter will insert the facts.)

It will be readily perceived from the evidence that a charge upon the rules of law applicable to a case of self-defense was demanded, and the learned judge below so viewing the case submitted the following charge: “ Every person is permitted by law to take the life of Ms assailant when it becomes necessary to do so in order to save his own life or to avoid the infliction upon himself of serious bodily injury. But to justify homicide in such case it must necessarily appear by the acts, or by the words coupled with the acts, of the person killed, that it was his purpose and intent to either kill the person killing or to do him some serious bodily injury; and the killing must take place xvhile the person killed xvas in the act of taking the life of the person committing the homicide, or of doing him some serious bodily injury, or of some act done by him evidently showing such intention. The attack upon the person, in order to justify homicide, must be such as produces a reasonable fear or expectation of death or some serious bodily injury; and it makes no ■difference whether the danger is real or imaginary if it has the actual appearance of being real, and the person who is so violently attacked is not bound to retreat in order to avoid the necessity of killing his assailant.”

The second subdivision of article 570, Penal Code, requires that the killing take place while the person killed was in the act of •committing the offense, or after some act done by him showing evidently an attempt to commit such offense. The charge requires the jury to believe that “ the killing took place while the person was in the act of committing the offense, or of some act done by him evidently showing such intention.” The defect is in the omission of the word after some act done.

If defendant killed Holmes while he was in the act of taking his life he would be justified, or if the killing took place after Holmes had done some act showing evidently an intention to take his life or do him some serious bodily injury he would also be justified. The act done by the party killed must show that he had the intention to kill the defendant or do him some serious bodily injury at the time defendant killed him. The charge of the court was calculated to limit the defendant, in order to his justification, to kill Holmes while in the act of taking his life or doing him some serious bodily injury, or in the act of doing some other aot by the deceased.

Again under the first subdivision of article 570, to justify, “ It must reasonably appear by the acts, or by words coupled with the acts, of the person killed, that it was the purpose and intention of such person to commit one of the offenses above named.” Upon this subject the court charged: “But'to justify homicide in such -case, it must necessarily appear by the acts, or by words coupled with the acts, of the person killed, that it was his purpose and intent to either kill the person killing or to do him some serious bodily injury.” “Seasonably” is defined by Webster as follows: In a reasonable manner; in consistency with reason. “Necessary” as defined by Webster, unavoidable; “necessary,” such as must be, impossible to be otherwise, not to be avoided, inevitably. “Death, a necessary7- end, will come when it will come.” It is quite evident from these definitions that there is a vast difference between reasonably and necessarily. If it must necessarily appear from the acts, or words coupled with the acts, of the party killed that it was his purpose to commit one of the offenses named in the article before a person can be justified in killing his adversary, then indeed appearances, whether reasonable or not, would have nothing whatever to do with the case. We think that the court erred in the charge upon self-defense in the particulars indicated.

Upon the subject of principals the court charged the jury in effect that, if they believed from the evidence that defendant and Joe Hunt, acting together in such manner as to make him a principal, did strike with a gun and cut with a knife the said Holmes, causing thereby the death of Holmes, and that said acts were prompted by malice express, they should find defendant guilty of murder of the first degree, but if upon implied malice they should find defendant guilty of murder of the second degree. The proposition contained in this charge is correct.

If two or more conspire and confederate to commit an offense, and such offense is committed, all present are guilty as principals, and each party is responsible for collateral acts growing out of the general or common design, but not for independent acts growing out of the particular malice of individuals. Let us concede, for the argument, that there was some proof tending to show a common design between defendant and Hunt (which is very doubtful), what was the purpose of the conspiracy? Was it to kill Holmes? What was its scope ? Did it directly or collaterally embrace the killing of Holmes?

How, in criminal trials presumptions should be based upon proved facts. This record nowhere furnishes the slightest fact from which we can assume a common design on part of defendant and Hunt to kill Holmes, except what occurred at the time of the homicide. It is true that Hunt and Holmes, while on the way from Corsicana, hut before defendant joined the wagon, had engaged in an ordinary fist fight. There is no evidence in the record, showing that defendant had been informed of this, or knew of any bad blood between the parties; hence the legal questions applicable to this case are those which arise upon the facts immediately attending the homicide.

Two theories are presented by which defendant is sought to be held culpable. 1st. That he had been informed of the difficulty between Hunt and Holmes, and had conspired with Hunt to kill Holmes. This is not only without support in evidence, but, under the facts of this case, is evidently preposterous. The wagon with and in which were Hunt and defendant had separated with Holmes several miles back on the road leading from Corsicana, Holmes leaving the main road going to his home. How it could be possible for Hunt and defendant to know that Holmes would, after dark, turn up ahead of them with a gun, we cannot comprehend.

The second theory is that, at the time defendant first saw deceased with the gun, he seized his gun and, unprovoked, proceeded to strike- and beat him in a violent manner, and, while so assaulting deceased, called Hunt to aid him in the violent and dangerous onslaught upon deceased; and that, therefore, whether he knew of Hunt’s intention to, or intended him to stab Holmes, or whether there was or was-not a common design to kill Holmes, being thus engaged in this violent assault and bringing Hunt in the affray himself, he is and should be held responsible for Hunt’s acts; and if this violent and! dangerous assault was made in pursuance of a conspiracy between Hunt and the defendant, the parties engaged may be guilty of murder of the first degree or of the second degree, depending upon the circumstances. But, suppose that the defendant had been informed of the difficulty between Hunt and Holmes, and had not espoused the cause of Hunt, but, meeting up with Holmes armed, under the-circumstances of this case believed that it was his purpose to kill Hunt, or suppose that the defendant from the conduct of Holmes-believed that it was his purpose to shoot him, and so believing attempted to disarm Holmes, and that he seized the gun and struck Holmes; that all that he did was intended to restrain and prevent him from committing a felony upon Hunt or himself, and while thus engaged in disarming Holmes he called for help, and Hunt ran up and stabbed Holmes, evidently he would not be guilty of the homicide. This theory of the case should have been submitted to the jury.

Again, suppose, to effect his purpose in restraining Holmes from committing a felony, defendant had gone beyond what was necessary in striking Holmes with the gun, but that all that was done by him was for such a purpose, and that his call for help was not intended to procure aid in his violent assault and battery upon Holmes, but to obtain efforts to disarm him or to restrain him so that a felony be prevented. Under this state of case we do not think he would be responsible for the fatal wound inflicted by Hunt,, prompted thereto by his (Hunt’s) instance. And this phase of the case should have been charged to the jury.

For the errors in the charge relative to the law of self-defense, and because of the omission in the charge in the particulars indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.

[Opinion delivered March 14, 1885.]