Franks v. State , 47 Tex. Crim. 638 ( 1905 )

Appellant was convicted of murder in the second degree, the penalty assessed being confinement in the penitentiary for a term of twenty-five years.

The first bill of exceptions shows that in the formation of the jury William Eggerton was summoned as a talesman and afterwards sat upon the trial. Upon his voir dire examination he was asked whether he had formed or expressed an opinion relative to the guilt or inocence of the defendant. He answered that at the time of the killing of young Galloway, by defendant, he said to the person who told him about it, "There goes another plea of insanity." The juror further stated he had no prejudice against defendant but like all good citizens he had a prejudice against the crime of murder. The juror in all other respects qualified. Whereupon defendant at this time had exhausted all of his peremptory challenges, and challenged said juror for cause. The court thereupon inquired of counsel whether the defense would involve the question of insanity, and being answered in the negative, the court overruled said challenge for cause, and had said juror sworn. We do not think there was any error in the ruling of the court. The mere fact that a juror has a prejudice against the crime of murder would not disqualify him; nor can we see how it would injure the rights of the defendant if he had a prejudice against the plea of insanity, when the defendant made no such plea.

Complaint is made by appellant of the following charge given by the court at the request of the county attorney: "If you find from the evidence that, prior to the shooting, deceased, without defendant's consent, seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that deceased and defendant had a difficulty over said money, then, if you believe that they separated and that thereafter defendant followed deceased up the road, then, if you believe that defendant in following deceased did so, not for the purpose of renewing or provoking a difficulty with deceased, but with an honest intention to demand of deceased the return of the money which defendant honestly believed that deceased had wrongfully taken from him, and the deceased in refusing to comply with such demand, was about to make an unlawful attack upon defendant with a knife of such a nature as to inspire defendant with the reasonable belief that he was in danger of serious bodily injury or death from such attack, and that acting on such belief defendant fired the fatal shot, he would be justified in so doing. On the other hand, you are charged that, where the possession of personal property has once been lost, the owner has no lawful right to regain it by such means as result in a homicide. So, in this case, if you believe that prior to the shooting the deceased, without the defendant's consent seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that defendant and deceased had a difficulty on account thereof, and that after they separated you believe beyond a reasonable doubt that defendant armed himself and followed deceased up the road, and you further believe from the evidence beyond a reasonable doubt that defendant so armed himself and followed deceased with the intention of renewing or provoking a difficulty with deceased, and that thereafter he shot and killed deceased, but if done upon express malice, as defined in the charge he would be guilty of murder in the first degree, and if upon implied malice as defined, would be guilty of murder in the second degree; and if done upon the immediate influence of sudden passion, aroused by an adequate cause, as defined in the charge, he would be guilty of manslaughter." Appellant excepted to said charge, because if defendant renewed the difficulty or provoked the same without the intention of doing serious bodily harm to deceased, and only for the purpose of demanding his money, he would be guilty of no offense; and because said charge, in effect, negatived defendant's right to resist an attack, which imperiled his life or inspired him with a reasonable belief of suffering serious bodily injury at the hands of deceased if he provoked or renewed the difficulty, no matter what his purpose or object may have been in so doing. We do not think the charge is erroneous. The words "renew and provoke the difficulty" here used in the charge are synonymous terms, and as we understand the law, is an apt presentation of the same to the facts of this case. The substance of the evidence shows, that appellant and deceased made a wager of a dollar each that appellant could not throw a certain anvil over his head. They placed the money in the hands of a bystander and appellant picked up the anvil and threw it over his head. Deceased immediately grabbed all the money out of the bystander's hand — at least appellant thought so; but the evidence rather indicates that one of the dollars fell upon the floor and deceased did not get it. However, knowledge of this does not appear to have been brought home to appellant. Thereupon a heated controversy or colloquy ensued between appellant and deceased as to the possession of the money: appellant insisting that he had won the money fairly, deceased insisting that he had not and refusing to give it up. Appellant picked up a hammer, deceased drew his knife, and in this posture passed out of the blacksmith shop. Thereupon appellant picked up a piece of iron in a manner indicating he would throw it at deceased. The bystander stepped aside. However, appellant did not throw. Deceased and appellant continued to abuse each other. Appellant went off to his boarding-house, deceased and companion started home. Appellant secured a pistol, came back, hunted deceased and discovering that he had started home, ran after and followed him something like 250 yards, halloaing to deceased to stop, which he did. Appellant demanded the money of deceased, which he refused to give up. Appellant, at this juncture drew his pistol, deceased started to run; appellant fired two bullets into his back as he ran off, and deceased fell and died instantly. Appellant testified that deceased opened his knife and made a gesture or demonstration as though to stab him with it, and that he fired immediately upon this demonstration being made. Without repeating in detail, this is the substance of the testimony as gleaned from the record.

Appellant asked that the court give the jury the following instruction, which was refused to wit: "If you believe from the evidence that shortly before the killing defendant had won a dollar from deceased, which deceased refused to deliver, and which he suddenly snatched from the hands of the stake-holder, whereupon a quarrel ensued between deceased and defendant, and in which deceased drew a knife upon defendant, and threatened to kill him, and immediately thereafter defendant went to where deceased was and again demanded possession of said dollar and deceased again refused to give it to defendant, but began to curse and abuse defendant and to make a demonstration upon defendant as though to draw a knife, and you believe that such facts, acts and circumstances taken together, did arouse in the mind of the defendant such a degree of anger, rage, resentment or terror as to render his mind incapable of cool reflection, and while in such condition he shot and killed the deceased, you are charged that he could not be convicted of any offense higher than the grade of manslaughter." We do not think this charge was called for by the facts, since the evidence does not show that immediately thereafter defendant went to where deceased was, but on the contrary the evidence shows that they separated, defendant going to his boarding-house, secured his pistol and sometime thereafter followed deceased some distance up the road towards deceased's house, and there shot and killed him. Appellant also asked the court to charge on the right of appellant to kill deceased if deceased had robbed appellant. We do not think this charge should have been given, under the evidence.

Appellant also excepted to the following portion of the court's charge: "You are charged, in this connection, that if you believe from the evidence that prior to the homicide, if any, defendant Franks and deceased Galloway had been engaged in an altercation of words and threatening gestures, and that there was thereby created in the mind of the defendant Franks such a degree of anger, rage, sudden resentment or terror, as to render the defendant, Franks, incapable of cool reflection; and you find that there was a cessation of said difficulty, if any, and that thereafter defendant Franks renewed the difficulty and killed deceased Galloway with said pistol, if he did; and you further find that such renewal of the said altercation, if any, was after sufficient cooling time from the original altercation, if any, that is, if there was sufficient time for such anger, rage, sudden resentment or terror of the defendant Franks, if any, to subside, and for his reason to interpose to such an extent as to comprehend the consequences of the act about to be committed, if any, then the homicide would not be manslaughter; and in passing upon this question the jury should consider all the facts." Appellant excepted to this charge on the ground, "that it was not demanded by the facts in evidence; that there was only a few moments between what the court termed the first and second difficulties, the facts showing that the same was one continuous difficulty or trouble, without cessation in fact; and because said charge fails to give a definition of cooling time, and left the jury without a rule in reference thereto; and because upon the subject of cooling time said charge did not require the jury to find as a fact that defendant's mind had in fact become cooled to such an extent as to comprehend the consequences of his act; but the court instructed the jury, as a matter of law, that if sufficient time had elapsed for such anger, rage, sudden resentment or terror to subside, and for reason to interpose to such an extent as to enable him to comprehend the consequences of the act about to be committed, then the homicide would not be manslaughter. Thus withdrawing the issue of manslaughter from the jury, and in effect directing the jury to find against defendant on the issue of manslaughter, even if defendant's mind had not in fact cooled." The evidence, as stated above, shows that there had been a previous difficulty. The parties separated and some little time thereafter the difficulty was renewed. Clearly, this presents the issue of cooling time. We think the charge of the court is correct. It follows the charge approved by this court in Surrell v. State, 29 Texas Crim. App., 321. However, appellant cites, to support his contention, the cases of Jones v. State, 33 Tex. Crim. 492; Eanes v. State, 10 Texas Crim. App., 421; Halliburton v. State, 32 Tex.Crim. Rep.. In each of the last cases cited, the issue of cooling time was not in law involved, since the defense alleged in each was insult to female relative. The statute authorizes reduction of the homicide to manslaughter in such case, regardless of the length of time elapsing between the act or information in reference to the insult, if as a matter of fact the deceased's mind was not cool. Hence said issue of cooling time is out of those cases. In Orman v. State, 24 Texas Crim. App., 495, the defense of insult to female relative was also involved. There Judge Willson, delivering the opinion of the court, held that the issue of cooling time was not involved where the defense is insult to female relative. We take it, that a careful inspection of the statute will demonstrate this fact, since the Legislature in the passage thereof, directly laid down another basis than the ordinary causes for manslaughter. In Wadlington v. State, 19 Texas Crim. App., 266, it was held: "However great the provocation may have been, if there be sufficient time for the passion to subside, and for reason to intervene, the homicide will be murder." In this case the proof shows that after deceased was made to release hold of defendant, some two or three minutes elapsed before defendant fired. The court held that the issue of cooling time should have been charged in connection with the issue of manslaughter. In Jones v. State, supra, the court very properly say, "that cooling time is not a matter of law but a matter of fact," but very improperly, as we take it, after a careful review of the authorities, hold that the charge given by the court was erroneous; and further erred in holding, "that it is not so much a question of time in which the mind may become cool, and sedate, as it is one of the actual conditions of the mind at the time the homicide occurred." It is further stated, "that the law has not undertaken to prescribe the time in which the mind may become cool, passing from a disturbed or enraged condition, nor can it well do so. It must depend upon testimony, not law." It is further stated that "If at the time of the homicide, the mind of the slayer be cool and deliberate his crime would be murder in the first degree. If on the other hand it was aroused to sudden passion to the point of being beyond cool reflection, brought about by an adequate cause, the killing would usually be of no higher grade than manslaughter. Whether the mind be cool or otherwise is a question of fact, not of law, and relates to the actual condition of the mind and not to his status merely from a lapse of time." This case is supported by the Eans and Halliburton cases, supra; but neither of them, as we take it, announce the correct proposition of law. We agree with said cases that cooling time is a question of fact, but it is the time that is the fact to be ascertained, not the condition of the defendant's mind. If defendant's mind is the fact to be ascertained, then cooling time has nothing to do with the question. Suppose a quarrel occurs between A and B, a year passes and A meets B to-day and shoots and kills him. It is doubtful whether the issue of cooling time could be in the case, or whether the issue of manslaughter could possibly be suggested by these facts alone. Then the only connection between the previous difficulty and the final one is the fact that brings the issue of cooling time into the case. Then, it becomes a question of fact as to how long a time, or whether sufficient length of time for an ordinary man to cool, has elapsed. This is not a question of law, but a question of fact. If sufficient time has elapsed between the first and second colloquy for a reasonable rational creature to cool, then the law presumes that he has cooled. He may not be cool, but he can not insist upon manslaughter from the fact that he has such a disordered mind that it cannot cool in a reasonable time. The law judges defendant by the rule of the average human mind, and if the average human would cool between the first and second difficulty, then the jury are warranted in the presumption that the defendant has an average human mind, and that therefore his mind has cooled. If the jury do not think that time has been sufficient for his mind to cool, then he is entitled to manslaughter; and if he has, then he is not entitled to it.

In Heo v. Sullivan, 3 Selden 396, Horrigan Thompson's Criminal Defenses, pages 69 and 70, we find this language: "The court was further requested to charge the jury that if they believed the prisoner in the heat of passion caused the death of the deceased it is not murder. This was properly refused. The designed killing of another without provocation, and not in sudden combat, is certainly none the less murder because the perpetrator of the crime is in a state of passion. The court was also requested to charge that if the jury believed that Smith, having had the fight with Sullivan, and by his conduct and blows aroused and excited the passions of the prisoner, and then returned, thereby keeping up the excited passions of the prisoner, and under such excitement the prisoner stabbed the deceased, it is not murder. This request was erroneous, and was properly rejected. Where after mutual combat, a question arises whether there has been time for excited passions to subside, the question always takes this form; whether there had been sufficient time to cool, and not whether, in point of fact, the defendant did remain in a state of anger. The request presented simply the question whether the defendant continued in anger up to the time of killing." Bishop in his new Criminal Law, section 711, subject 2: "If the passion had time to cool, the offense is not reduced to the lower degree, though in fact it had not cooled. For ``when anger, provoked by a cause sufficient to mitigate an instantaneous homicide, has been continued beyond the time which in view of all the circumstances of the case may be deemed reasonable, the evidence is found of that depraved spirit in which malice resides.' (Section 712.) We have no rule for determining how much time is necessary for cooling; in the nature of things, it must depend much on what is special to the particular case. Commonly the time in which an ordinary man under like circumstances would cool is deemed reasonable. ``If two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, that is murder; for there was time to allay the heat, and their after meeting is of malice.' An hour seems to have been thought sufficient. Three hours have been. Where a witness testified that the prisoner was ``absent no time,' though there was a pause in the fight, there it was adjudged not to have been a cooling." (Section 713.) "Ordinarily the sufficiency of the cooling time, and the sufficiency of the provocation, are respectively deemed questions of law, not of fact. But the time required to cool, for example, is sometimes, it is believed with great propriety, submitted to the jury."

We might multiply authorities on this question, but we deem it unnecessary to do so, taking it as thoroughly established that cooling time is a question of fact, where the issue is in the case, to be submitted to the jury as a question of fact on time and not upon the condition of the defendant's mind. It follows, therefore, that the court's charge complained of was not error.

Other matters complained of by appellant we do not deem necessary to review. There being no error in the record, the judgment is affirmed.

Affirmed.