Varnell v. State , 26 Tex. Ct. App. 56 ( 1888 )

Hurt, Judge.

This conviction was for murder of the second degree, with the penalty fixed at nine years in the penitentiary.

The testimony of Mrs. Beasley, nee Land, is in substance as follows: “I am the daughter of Jonas Land, deceased, who was killed at his home in Hill county, Texas, by Tom P. Varnell. On the night of March 5, 1883, there was a gathering at my father's house. Varnell was present. George Walker came with him. There was dancing in a vacant house in the yard. Between eleven and twelve o’clock I missed my sister Ella. Hunting for her on the outside of the house, I found my sister and Yarnell lying on the ground. I said: ‘What are you doing here?’ Ella said: ‘Make him quit, for I can’t.’ I then pulled Yarnell up, and my sister Ella ran to the house. Yarnell caught me by the sleeve and told me I had to help him hunt for his pistol. I told him to let me go; that father was coming, and that if he caught me out there he would kill me. He said, if he did, he would kill him. Y’ery soon afterwards my father came up with a lantern in his hand, but nothing else. He (the father) asked what did all that mean. Defendant said: ‘Stand back; I am a desperate man.’ Yarnell shot twice. He shot with a pistol. He got it from George Walker. Walker handed bfm the pistol.” The sister Ella, to whom reference is made, did not testify in the case. It was shown that she is now deaf, and is in the asylum at Austin. There is testimony in the record tending to contradict some parts of this recital, and clearly presenting the issue of self defense; but for the purpose of disposing of the points raised on the charge of the court, it may be taken as the facts attending the homicide.

Having submitted to the jury the general rules of law relating to manslaughter, murder of the first and second degree, and of self defense, the court charged as follows: “When one person kills another in defense of his life, or to protect his person from serious bodily injury, then in law such killing would be justifiable, provided the person who did the killing did not by his own unlawful act provoke the difficulty and bring about the excuse of taking the life of his assailant, in which case he would not in law be justifiable.” Again: “If the defendant by his unlawful acts brought about the difficulty that led to the death of Jonas H. Land, then he would not be justified in killing said Land, because he, defendant, was in danger of losing his life or of suffering serious bodily harm at the hands of the said Land; but if the said difficulty was provoked by the defendant for the purpose of taking the life of said Land, and if the defendant killed him with express malice, it would be murder of the first degree; but if the killing was with implied malice, it would be murder of the second degree.” * * *

If the accused provokes the combat—produces the occasion— in order to have a pretext to slay his adversary, or do him serious bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provokes the combat or produces the occasion without any felonious intent—intending, for instance, an ordinary battery merely—the final killing in self defense will be manslaughter only. It will be seen from these rules that there must not only be a provoking of the combat, or a producing of the occasion, but the one or the other must be done intentionally—designed by and for the purpose of killing or inflicting serious bodily harm, or of engaging in an assault and battery. When this is the case, and the party is driven to kill to save his own life, having provoked the combat or produced the occasion for the purpose of slaying his adversary, he will not be permitted to urge his extremity as a necessity for the killing. But if there was no felony intended, he will be permitted to urge his extremity in order to reduce the killing to manslaughter.

The evidence in this record presents two theories: (1) That appellant killed Mr. Land when neither his life nor person was in danger, and in the absence of circumstances tending to reduce the homicide to manslaughter; (2) that the killing was in self defense. There is not a fact tending to show that appellant provoked the combat, or produced the occasion with the intention and for the purpose of killing or in any manner injuring Mr. Land; hence the above charge was without support in evidence, and was clearly inapplicable to the case or to any phase of the case.

In another paragraph of the charge occurs the following: “The court instructs you that every man has the right to protect his minor daughter from debauchery; and if the defendant was at the house of Jonas H. Land, and sought to have carnal intercourse with one of the minor daughters of said Land, and if the said Land was killed while he was endeavoring to see that no such carnal intercourse should occur between the defendant and his daughter, and if the defendant killed him because of such interference, and such killing was done with express malice, * * * you will find defendant guilty of murder of the first degree. * * * If such killing was not done with express malice, then you will find defendant guilty of murder of the second degree.” The evidence bearing upon this subject is that the appellant was at the social gathering, and that about eleven o’clock at night Miss Ella Land was missing from the dance. This seemed to create concern for her on the part of her father (deceased), her sister, now Mrs. Beasley, and some others, and they began to seek her. Mrs. Beasley came upon Varnell and Miss Ella Land about thirty or forty steps from the house. Ella Land and Varnell were evidently copulating, with Ella’s consent. Mrs.. Beasley took hold of Varnell; he arose, and Ella got up and left. After Ella had gone to the house, deceased came up, and the shooting occurred. Under this state of the case there is no-possible reason, fact or circumstance requiring the above-charge.

If deceased attempted to kill or assaulted the accused because of what had occurred between his daughter and the accused, the attempt or assault was not to prevent, but to revenge, what had already occurred. And while the act of Varnell was morally wrong, .outrageous and infamous, still he was guilty of no offense against the law of this State, and had not forfeited his-life to the father of Ella Land; nor had he lost his right to perfect self defense because of this matter, if he was entitled to-it otherwise. It is preposterous to assume or indulge the hypothesis-that Varnell intended to provoke a combat, or produce the occasion, in order to obtain a pretext to kill deceased, or inflict serious bodily injury, or any injury, upon him, by having carnal knowledge of his daughter with her consent, at night, thirty or forty yards from the house and away from th& deceased. The charge under discussion was wrong, was out of the case, was not supported by any evidence, and was very damaging to the appellant. The appellant’s conduct with Miss Ella Land was most fearfully calculated to prejudice his case with the jury—not legally, but unlawfully—and hence the necessity of proper instructions bearing upon this matter. These were requested by counsel for appellant, and will be found in requested charge number three, which should have been .given; •or, if not strictly correct, a proper charge upon this subject should have been prepared by the court and submitted to the jury.

Opinion delivered June 29, 1888.

Eor the errors in the charge of the court, the judgment is re- . versed and the cause remanded.

Reversed and remanded.