Chatman v. State , 40 Tex. Crim. 272 ( 1899 )

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of seven years, and he appeals.

Four witnesses testified for the State in regard to the difficulty, and the defendant testified on his own behalf. As the testimony or all the State's witnesses is substantially the same, we will quote the testimony of the prosecutor, T.J. Kemper, as presenting the State's case, and that of the defendant as presenting the defendant's case. T.J. Kemper testified for the State: "I live in Marlin, Texas, and know the defendant. On Sunday afternoon, February 20, 1898, I was in my wagon yard in Marlin, Texas, in company with Mr. C.G. Capers, Mr. Gene Towers, Belo Forrest, and Len Morris, when defendant and Jim Henry came into the yard, and defendant said that some one had thrown a rock from over in my yard and struck him in an adjoining lot, and inquired who threw the rock. Belo Forrest spoke up, and said no one had thrown a rock from over there. Defendant said that they had, and that the rock struck him. I then spoke up, and told defendant that no one had thrown a rock from over my way. Defendant then replied to me, 'It's a damned lie.' I said, 'You are another,' and defendant thereupon struck me with his fist. I struck back, and several licks then passed between us. I was getting the better of the fight, and struck defendant one good hard lick in the face, and staggered him some, when defendant ran back towards a pile of stove wood which was lying in the wagon yard, and Jim Henry came meeting him, and handed him a large stick of stove wood, with the remark, 'Give him hell.' Defendant ran up to me and struck me with this stick or wood on the head, knocking me down. I was unconscious from the blow struck me by the defendant with the stick of wood, until the Sunday following, during which time the physicians had performed the operation upon me testified about by Dr. Torbett. I was confined to my bed for a period of about six weeks from the effects of this blow by defendant. The stick of wood with which defendant struck me was of sound postoak, about eighteen inches or two feet long, about four inches in thickness, and would weigh about four or five pounds. I think the stick of wood shown me is the same defendant struck me with. If not, it is of about the same size, material, and weight."

The State proved venue by this witness, and time, as laid in the indictment.

Cross-examined: "At the time defendant first came over into the yard I was whittling, and had my knife open in my hand. When he came in, he stopped about forty-five or fifty feet away from where myself and the gentlemen mentioned in my direct examination were standing, and continued to stand there during the conversation which ensued about the throwing of the rock. I engaged in the conversation about the throwing of the rock and walked towards defendant, speaking to him pleasantly, and telling him no rock had been thrown from over that direction. I shut my knife up and put it in my pocket when I started towards him, and went the forty-five or fifty feet between us, to him, when he called me a liar, and I called him another, and he struck me. He struck me the first blow. It is a fact that I did come the forty-five or fifty feet from where I was standing to him, and that he did not advance a step towards me. The last blow which I struck him, before he got the stick of wood and struck me with it, nearly knocked him down. When we first began to pass blows we were about thirty feet from the pile of stove wood, but I pressed the fight, and defendant went backwards toward the wood pile. If defendant had any other weapon or instrument of offense or defense about him, I never saw it, and he did not attempt to use it. There had never been any previous trouble, quarrel, or difficulty between defendant and myself. This was the first trouble of any character we had ever had, and the relations between us up to this time had been friendly."

Felix Chatman, defendant, testified: "On the Sunday afternoon of the difficulty between Mr. T.J. Kemper and myself I had been sitting in the rear of a restaurant on the adjoining lot to Mr. Kemper's wagon yard, playing a game of dominoes. During the game I got up to go into the restaurant to get me a glass of water, when some one threw a rock from over in the direction of the Kemper wagon yard, and struck me with it, inflicting pain upon me. I went through the restaurant, and over into Mr. Kemper's wagon yard, and there saw him, Mr. Capers, Mr. Towers, Mr. Belo Forrest, and Mr. Len Morris, all talking together. I walked up to within about thirty feet of them, and asked who it was that threw that rock over there and hit me with it. Belo Forrest spoke up, and said that no rock had been thrown from over there. I remarked that it came from the direction of the wagon yard, and when I did this Mr. Kemper got up and started towards me, and said that I was a liar; that no rock had been thrown over there. I told him he was another, and by that time he had gotten to me, and when he got to me he struck me in the face with his fist. The blow caused me pain. It was a pretty hard blow. Mr. Kemper was striking me with his hands, and I thought he had something in one, striking me with it. I was retreating, and warding off his blows as best I could, when finally Mr. Kemper struck me on the nose, the blow causing the blood to flow from my nose and face, whereupon I immediately ran about ten steps to a pile of stove-wood lying in the yard, got a stick of wood, and struck Mr. Kemper with it. Just before I started to get the stick of wood, I saw Mr. Capers, whom I knew was Mr. Kemper's uncle, run up, and some one said, 'Look out for a knife,' and I looked, and saw an open knife in Mr. Capers' hand. Then I got the stick of wood, and struck Mr. Kemper with it, and ran off out of the yard. I had no intention of getting into a difficulty when I went over into the wagon yard on that afternoon. I was unarmed at the time. When I went over there I stopped about thirty or forty feet from these white men, and, when Mr. Kemper got up and started towards me, I did not advance on him any, — just stood still until he got to me and struck me. Mr. Kemper called me a liar first and struck me first. When Mr. Kemper started towards me, Mr. Capers also started towards me, right behind Mr. Kemper. Mr. Capers had his open knife in his hand. Mr. Kemper was whittling when I first went into the yard, and had his knife open in his hand. When he started towards me he shut it up, and he had the closed knife in his hand when he was striking me, striking me with it."

Cross-examined: "When I first went over into the yard I asked Belo Forrest who threw the rock and hit me. He said no one had thrown a rock from over in that yard. I said a rock had been thrown from over in that direction, and had struck me. Mr. Kemper then jumped up and said it was a lie, that no rock had been thrown from over there, and started towards me, and when he got to me he struck me. He struck me the first blow. He hit me three licks. I only struck him once with the stick of wood. When Mr. Kemper started towards me, Mr. Capers came on behind with his knife in his hand, advancing upon me. I then got the stick of wood, and hit Mr. Kemper with it, he having just struck me in the face, and made my face and nose bleed, and nearly knocked me down. After the difficulty, I went down to Mr. Renfro's drug store, and had Dr. Ward dress my wounds on my face. The skin was broken on my face where Mr. Kemper struck me, and Dr. Ward put some plaster on it."

The court charged on assault with intent to murder, aggravated assault, and self-defense. As appellant assigns as error the court's charge on aggravated assault, we copy the same, as follows: "If you believe from the evidence that the defendant, in the county of Falls, State of Texas, on or about the time charged in the indictment, with a deadly weapon, did unlawfully assault the said T.J. Kemper as charged, or did inflict serious bodily injury upon T.J. Kemper, but at the time of making such assault the defendant possessed no specific intent to kill, but was, by some adequate cause (as hereinafter explained) moved to such a degree of anger, rage, sudden resentment, or terror as to render him for the time incapable of cool reflection, and in such a state of mind he committed said assault, and that such assault was not in defense of himself against an unlawful attack, producing a reasonable expectation or fear of death or serious bodily injury, then you will find the defendant guilty of an aggravated assault, and assess his punishment at a fine of not less than twenty-five nor more than one thousand dollars, or by imprisonment in the county jail not less than one month nor more than two years, or by both such fine and imprisonment, as you may determine and state in your verdict." This charge was excepted to. Appellant contends that the charge imposed on him a burden not authorized by law; that is, that it required the jury not only to believe "that adequate cause existed to reduce the offense to manslaughter had death resulted, and that passion was engendered which rendered the mind of appellant incapable of cool reflection, but also that appellant did not have at the time the specific intent to take the life of Kemper." In this contention appellant is correct. While it is true that there can be no assault with intent to murder unless the party making such assault entertains at the time the specific intent to kill, yet it by no means follows that every assault, committed by a party where he entertains the specific intent to kill is an assault with intent to murder. This intent, as we understand it, must exist, and the assault must be of such a character that if death results it would be murder of either the first or second degree. If death result and it would not be murder of the first or second degree, then, although the specific intent to kill is entertained, it would not be an assault with intent to commit murder. Of course, an assault upon implied malice, if the other elements of the offense are present, would be an assault with intent to murder; that is, if the intent to kill is formed in a mind disturbed or excited by passion, yet there is no adequate cause to reduce to manslaughter, and an assault is made with the specific intent to kill, under such circumstances it would be an assault upon implied malice, and so an assault with intent to murder. But if adequate cause is present to excite passion, and passion is excited by such adequate cause, and the intent to kill is formed in such a state of mind, in case death results from the assault the offense would only be manslaughter; hence, if death does not ensue, such assault would be only an aggravated assault. See Childs v. State,35 Tex. Crim. 573; Carter v. State, 28 Texas Crim. App., 359; Stevens v. State, 38 Tex.Crim. Rep.; Ponton v. State, 35 Tex.Crim. Rep.. The foregoing was the only charge given by the court on the subject of aggravated assault, and it was clearly erroneous, and put a burden on appellant not authorized by law. The effect of it really was to deprive him of the defense of aggravated, assault altogether; and certainly the testimony very cogently presented the issue of aggravated assault in this case.

Appellant also complains of the action of the court in refusing to instruct the jury on the subject of aggravated assault predicated on the acts and conduct of Capers, in connection with those of Kemper. It occurs to us that the court should have given to the jury the proper instruction on this phase of the case, both relating to manslaughter and also self-defense; especially when the court instructed the jury, that, if appellant used more force in his defense against the assault by Kemper than was necessary, he could not rely on self-defense. If appellant was the aggressor and struck Kemper the first blow, having no further intent than to enter into a fist fight with him, and he was pressed by Kemper; and if, in addition to this, Capers ran up in a hostile manner with a knife, then, if the mind of appellant, on account of this dual attack on him, became excited or aroused by passion to such an extent that he was incapable of cool reflection, and he then formed the intent to kill, — it would not have been an assault with intent to murder, but only an aggravated assault. Again, if appellant did not make the first assault on Kemper, but Kemper made the first assault on him with his, hands, and fist, the jury might believe that, although during the progress of the fight he was pressed by Kemper, who struck him a blow or blows which almost knocked him down, yet he did not have the right to resort to the use of the stick in order to repel such assault, and the resort to such a weapon was the use of more force than was reasonably necessary in his protection; whereas, if their minds had been directed to the combined assault on him by both Kemper and Capers, as suggested by appellant's own testimony, then the jury may have believed that he did not resort to more force than was reasonably necessary for his own protection; or they might believe, under such circumstances, that, although appellant used more force than was reasonably necessary, he was only guilty of an aggravated assault; and, in our opinion, the court should have explicitly instructed the jury in this regard.

There is another phase of the case, it occurs to us, which should have been presented to the jury. There is no controversy that appellant, while at his own place of business, was struck by a rock, thrown by some one, which came from the direction of Kemper's wagon yard, where Kemper and his friends were at the time. Appellant and Henry immediately went to the wagon yard, and, for aught that appears, politely inquired who had thrown the rock which struck appellant. According to appellant's testimony, during the colloquy Kemper called him a liar, advanced upon him, and struck him the first blow. According to Kemper's testimony, the lie was passed between them with reference to the throwing of the rock, and he says that appellant struck him first. Now, if appellant, smarting under the blow from the rock which had been thrown into his place of business, reasonable believed that it was thrown by some of the party in the wagon yard, and, on his inquiry as to who threw the rock, appellant called him a liar, then it occurs that this itself might be adequate cause to reduce the offense to an aggravated assault. We are aware of our statute on the subject which requires the provocation must be by the party assaulted, and not by some other person; yet, in construing our statutes on manslaughter, it has been held that there are other adequate causes outside of those outlined in the statute itself. It may be that neither prosecutor nor any of his party were guilty of throwing the rock into appellant's place of business; but, evidently, appellant believed that some one of the party had thrown the rock; and we are to judge of this question from defendant's standpoint. If the rock had been thrown from the wagon yard or from that direction, and appellant reasonably believed that some one of the party in the wagon yard had thrown the rock, and he immediately went to see about it, and was denounced as a liar, and as stated by him, told abruptly to get out of the yard, then we are inclined to the view that this might constitute adequate cause; and this phase of the case should have been presented in an appropriate charge. A number of other errors are assigned with reference to the charge given by the court, but we do not deem it necessary to discuss the charge further. The charge was evidently not a fair and impartial charge, such as the law requires in cases of this character; and because of the errors in failing to properly present the issues arising from the evidence, the judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.

DAVIDSON, Presiding Judge, absent.