Mealer v. State , 32 Tex. Crim. 102 ( 1893 )

SIMKINS, Judge.

The appellant complains that the court erred in refusing to charge manslaughter.

The testimony shows, that one Sprouse and deceased got into a personal difficulty in a small room in the rear of a saloon in which appellant was barkeeper; that appellant went' into the room with his pistol, and shot deceased in the stomach. The defense was, that appellant shot to save the life of Sprouse from deceased, who was fighting him with a knife. The court charged on murder in both degrees, and on justifiable homicide in the protection of the person of another from death or serious bodily injury, or the reasonable expectation or fear of the same. We do not think the court erred. There was no evidence of manslaughter in the case, and could not be. There was no evidence of any adequate cause, and if passion existed, it was upon inadequate cause. The sole ground of defense was the actual or apparent danger to Sprouse, and this was submitted in every phase that the evidence fairly suggested, and a special charge given at appellant’s request certainly emphasized this defense.

Counsel filed elaborate bills of exception to nearly every portion of the general charge, and requested seventeen special charges, which we carefully examined, with an attention and respect due to the ability and industry of counsel; but if any error in the extensive and carefully worded charges of the court can be found, it is that the charges are more favorable to appellant than the evidence justifies.

There is no question that Sprouse began the difficulty. He interfered in a quarrel between deceased and another, ordering deceased to put up a knife with which he was whittling, and with which he was making no demonstrations while engaged in a drunken quarrel. After some objection, deceased closed, or partially closed it, when Sprouse began shoving him back in the corner, and blows were passed between them. Appellant came in the room with a pistol, and killed deceased. Whether he stood leaning on a barrel, watching Sprouse begin the fight, or whether he came in after it began, there is no pretense that he did not hear Sprouse, three times, ordering deceased to put up his knife, and deceased’s replies thereto, and therefore knew that Sprouse interfered in the quarrel and began the difficulty. The door between the room and the saloon where defendant was standing was opened, and the quarrelling between deceased and Harbinson had previously drawn the crowd from the saloon into the room; and in fact, in his application for a continuance, the appellant stated he expected to prove by the witness Gibson that appellant could hear the loud talking between Harbinson and deceased, and the conversation between deceased and Sprouse. Under the testimony introduced by the State, it was murder upon express malice; for it was shown, that at the time appellant shot deceased, he (deceased) was being held by two men, and was much intoxicated, and the knife was closed. It was further shown, that appellant had had a previous difficulty with deceased a month before, and shot at him, and subsequently threatened to kill him if he ever got into a difficulty with him again. We think the verdict is singularly lenient.

Appellant complains, that the court erred in refusing to allow certain citizens of Dallas County to prove that the reputation of the witness Willis for truth and veracity was good. The court did not err. Appellant himself introduced evidence of the fact that the State’s witness Aaron Scott agreed to accept a bribe from Willis. He then introduced Willis, who testified he had made no such offer, and that Scott’s reputation for truth and veracity was bad, and appellant then offered testimony to show that Willis’ reputation for truth and veracity was good. The necessity for such testimony, if any existed, having been voluntarily made by the act of appellant himself, he can not complain of the refusal of the court to admit the testimony offered.

Appellant also complains, that the court erred in refusing to permit Judge Nash to testify for the purpose of impeaching the State’s witness Hacker. Hacker was asked by appellant whether he had testified in the trial of Sprouse as to the manner in which deceased was held when he was killed by appellant, and replied he did not remember; that if he was asked the question, he had so testified; that he had been questioned fully on that trial. Appellant then offered Judge Nash to prove that the witness had not so testified. The ground upon which the court excluded the offered testimony was certainly erroneous, to-wit, that the witness was the counsel in both trials, and it was bad practice for a counsel in a case to testify therein. However correct as a moral proposition, it is not a legal objection. Still, the court did not err in excluding the testimony, for the bill of exceptions does not show that the witness Nash would have testified that the identical fact was called to the attention of the witness Hacker on the Sprouse trial, upon which it was now proposed to impeach' him.

Appellant also claims, that the court erred in admitting the details of a former difficulty between appellant and deceased. The record shows that the appellant cross-examined the State witness as to all the details of the difficulty, and that he also introduced the witness Erwin and-proved the same facts, and he can not be now heard to complain.

There was certainly no error in the refusal of the court to permit the appellant to prove threats against himself on the part of deceased. The appellant was in no possible danger when he shot deceased. In fact, it seems questionable whether deceased knew of his presence, for he was scuffling with Sprouse and a railway employe when he was shot by appellant. The offered proof of threats suggests a different motive for the killing rather than the protection of Sprouse, a suggestion strongly intensified by the previous threats made by appellant against the deceased, and his effort to kill deceased a month previously.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.