Armsworthy v. State , 48 Tex. Crim. 413 ( 1905 )

BROOKS, Judge.

Appellant was convicted of murder in the second degree, and his punishment fixed at confinement in the penitentiary for a term of five years.

The evidence shows in substance that appellant and deceased met in the public road, deceased being in a wagon, and appellant walking. Words ensued between them and appellant attempted to shoot deceased with a pistol. The pistol snapped and appellant left, and in a few minutes returned with a gun and shot deceased in the face, putting out his eyes, and slightly wounding him in other portions of the héad and face. Dr. Talbot testified that he was a physician; could not tell how many shot hit deceased; could not count them; he was shot all over the face. His eyes were shot out, and he was shot in the mouth. He was shot in the hair, neck, throat, and chest, and perhaps one or two óf his teeth were shot out. “I extracted some of the shot. Waited on deceased eight or ten days. In my opinion this was a very serious wound, but I did not consider it fatal unless complications arose. I ceased attending him because I did not think my services were needed any longer and thought his condition very good. I did not consider the wounds dangerous. It was a serious wound but not necessarily dangerous. By complications I mean erysipelas, blood poisoning or pneumonia. I consider it, as far as the wound went, unless these complications set up, he was out of danger when I quit.” The testimony does not show that any complications such as the physician testified about ensued. Within two months after deceased was shot he was up and able to visit his neighbors. It was within a few days of six months after the wounds were inflicted by appellant, before deceased died. " Appellant insists that the court should have charged article 651 and 652, Penal Code. 'The charge of the court in reference to the matter thus suggested is, as follows: “I further charge you, upon an indictment for murder defendant may be convicted of assault with intent to murder. If the evidence in this case fails to establish to your satisfaction, beyond a reasonable doubt, that the wounds inflicted by the defendant, if any, on the deceased, E. G. James, caused his death, then you will consider whether the defendant is guilty of an assault with intent to .murder,” The articles cited above are more specific, as insisted by appellant, than the common law, and state not only that the destruction of life must be brought about by the act, agency, procurement or omission of another, but that the destruction of life must be complete by such act or agency. In other words, if the wounds inflicted by appellant upon deceased did not cause his death, and appellant was not the guilty agent that brought about the complete destruction of his life, then he is not guilty of murder. It is true that the witnesses testified deceased did not recover, that his health gradually failed under the wounds inflicted by appellant. We take it, that appellant being entitled to the reasonable doubt in the matter, should have had a charge presenting the question more accurately.

Appellant insists that the court should have charged on self-defense. Appellant testified in his own behalf substantially as follows: “That the difficulty between himself and deceased occurred on June 38, about 5 o’clock; that he had been to Texarkana with his father and came back with him; that he (defendant) in company with Gardner, left Dr. Bentley’s home and started to his (defendant’s) home. Deceased lived about three hundred yards south of Bentley’s house, on the west side of the road) opposite Gardner’s. When defendant and Gardner were about half way between Bentley’s place and Gardner’s, defendant heard a wagon coming behind him and glancing back saw it was deceased in company with Walraven and Hickson. When defendant saw the wagon he said to Gardner that he wanted to speak to James (deceased). Defendant accosted James, as follows: ‘I said hold on a minute, Mr. James.’ He pulled up the lines and said, ‘Well.’ I said, ‘Mr. James, what is the matter? What have we done to you as a neighbor to cause you to take such a stand as you have ?’ • He said, ‘I have done nothing, except what the law requires me,’ or words to that effect. I said, T care nothing for that, but you made a remark this afternoon, and I want to know whether it was with reference to my sister or not.’ He said, ‘You God damn little son óf a bitch, do you presume to ask me what I say or do,’ or words to that effect; and he said, ‘I will wear you out.’ He had a whip in his hand, or reached for one—he had it anyway when I looked up, and he was threshing at my face and eyes from a standing position in the wagon. He was sitting down when I spoke to him, and after I spoke he rose and commenced threshing at me when I asked those questions. When he threatened to whip me he reached out that way for me, and I drew a revolver. I said to him, ‘It is enough to scandalize my people, let alone horse-whipping me, and I will not stand for it. I will certainly hurt you if you hit me in the face with that whip.’ Hickson said to me, ‘Don’t shoot, Arthur.’ I said. ‘I am not going to shoot, and I am not going to be horse-whipped either/ Walraven and Hickson were trying to get hold of James to hold him back in the seat, and the mules either started up or somebody started them, and they went a few paces, three or four, south, and Mr. James jumped out of the wagon and said, ‘I will wear the road out with that little son of a bitch if I can get hold of him/ and I looked back and he was coming- on me, and I drew the revolver again. He threw the whip at me and I picked it up and threw it back in the wagon, and said, ‘I will have no more to do with you. You have got no sense. I see that/ I went away from there then, went north. I did not snap my gun at him. I went in the direction of Dr. Bentley’s. After I had turned the corner of the lane going east, I heard James say, ‘Oh Charles, bring me that; bring me that. I will Mil the damned son of a bitch, if he is the last man I ever see/ I heard James say that. I was then on my road home. * * ' * Some one halloaed in the house, ‘Come in, Arthur, they are going to intercept you across the field/ I said, T guess not/ and my aunt or somebody in the rear of the house came to the side gate in the south yard fence, and got hold of me, and said, ‘Come in, Arthur, and eat supper, and then go home/ and I could not well get away. She was Mnd of excited, and had hold of me, and I advanced into the gate, through the wood-house, then through the dining room into the middle room. I remained in the house a very short time. I just stepped into the middle room and there was a south window. I expected somebody in that middle room. My aunt left me there in the dining room, or went around to the rear. * ' * * I heard exceedingly loud talking, looked out the window, and saw two or more persons coming in a northerly direction. I saw one of them was Mr. James. They were probably ten or twelve paces apart. I heard some loud cursing, but could not distinguish the words. I was inside the house, and could hear one oath after another, a regular torrent of oaths. I thought they were undoubtedly coming after me, and to do me some harm. There was a double-barrel shotgun sitting in the closet just to my right, and I picked it up by the barrel. * * * and went out of the house, but did not see any one, but could hear somebody. * * * I stood there half a minute possibly before I saw any one. I then saw Charley James and saw his father afterwards. I could not say positively how close Charley was to Ms father, but the best I can remember would be, about half the distance between his father and myself. When I saw him he was possibly fifteen steps from me, and I says, ‘Hold on, Charley/ and he stopped, and almost simultaneously or immediately afterwards his father halloaed and said, ‘Stand aside, Charles, I will fix the son of a bitch/ and then I looked beyond him. He stepped out of the way a couple of paces or more, and I saw his father coming on me with his hand back here, and the shot was fired. He was coming on me with his hand behind him. 1 could not see what he had in Ms hand. * '* * At the time I saw James and heard him tell his son to stand aside, I thought he was going to shoot me. From the attitude he was in, the position he was in, it left no room for doubt at all." This evidence as we understand it, raises the issue of self-defense, and the court should have charged on it.

We think the court erred in failing to charge the jury upon the issues of manslaughter, and aggravated assault.

In presenting the law of self-defense on another trial we suggest that the court charge on previous threats made by deceased to injure appellant. Swain v. State, 12 Texas Ct. Rep., 512; art. 713, Penal Code.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.