Duke v. State , 61 Tex. Crim. 19 ( 1909 )

At a former term of this court the judgment herein was reversed and remanded. The Assistant Attorney-General has filed a motion for rehearing alleging error in the former opinion. He bases it upon two grounds: First, in holding that the charge of the court below limited the defense to an actual attack when the proof showed that the defendant's theory was that he shot in defense of himself against an attack about to be made. Second, in holding that the court below failed to charge the jury that the defendant had the right to continue to shoot as long as it was apparent to him that he was in danger. At first blush the former opinion, when read alone, without reference to the entire record, would seem to be subject to the latter criticism. The conclusion heretofore reached by this court and now adhered to is, that the question of actual attack by deceased is not in the case, while that of apparent danger arising from the threatening acts of the deceased at the time of the homicide together with the threats of the deceased against appellant prior to the homicide, is the only theory upon which appellant sought to justify the homicide. It follows, therefore, that the lower court ought not to have instructed upon actual danger in any form, but should have confined the defensible question to that of apparent danger arising from the acts of the deceased at the time of the homicide, coupled with and viewed in the light of his previous threats against the life of appellant. Threats having been made by deceased to take the life of appellant, and these threats having been communicated to appellant, and having been followed by deceased at the time of the homicide by acts manifesting an intention to execute such threats, the law makes it apparent danger, and if, under such circumstances, appellant, having a reasonable apprehension of such danger, shot and killed the deceased Chaney, he would be justified. There is no evidence in the record of an actual attack. Our statute, article 713 of the Penal Code, is very broad, and perhaps unique, and reads as follows:

"When a defendant accused of murder seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made."

The legal as well as the logical effect of this statute is to justify the homicide upon the ground of apparent danger if from such apparent danger the defendant has a reasonable apprehension created by such threats coupled with the act mentioned in the statute. Under such circumstances the defendant is not bound to retreat, nor is he required, so long as danger from the deceased appears to him imminent, to stop shooting until he shall have killed his adversary, if to him, as viewed from his standpoint, it reasonably appears necessary to save his own life or to prevent serious bodily injury. Under this statute and the circumstances therein mentioned, he is not limited in his right to "repel force with force." This term "force with force" implies an actual attack and excludes the idea of apparent danger. It can only apply where the danger is actual. Therefore, when the court instructed the jury as in paragraph 20 of its charge, it went beyond the law. That paragraph is as follows:

"A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and from no other, and in such case the party acting under such real or apparent danger, is in no event bound to retreat in order to avoid the necessity of killing his assailant, but he has the right to stand his ground and repel force with force, till it reasonably appears to him from his standpoint that he was out of danger."

The vice of this paragraph is in the words "his assailant" and "repel force with force." These words imply an actual attack and real danger. They do not apply to apparent danger. The only theory presented by the testimony, and that relied upon by appellant, is that the danger was apparent, and that the deceased was doing an act manifesting an intention to execute his threat to take the life of appellant. Upon another trial this paragraph should be given the correction pointed out. This was in the mind of this court when its former opinion was rendered. With this correction the former opinion will stand.

We further emphasize the fact that the question of "abandonment of the difficulty" is not in this case and the lower court is instructed upon another trial to omit that question from its instructions to the jury. Appellant either shot deceased as he was running from him, as indicated by the testimony of Miss Rutledge or he shot him both times, for he fired two shots while deceased was trying to get his gun out of the buggy. The testimony of Miss Rutledge would indicate that the deceased had made no attack real or apparent upon appellant, but was running from him. The testimony of Russell was that deceased had reached his buggy and was trying to get the gun when appellant fired, and that he staggered back or fell, and recovered sufficiently to again try to reach his gun when appellant fired the second shot. This, in connection with the threats made by deceased to take the life of appellant, furnished the ground for reasonable apprehension of danger, and a manifestation on the part of deceased to execute his threat. Under no view of the case would abandonment of the difficulty be shown or disclosed by the evidence.

Again, in the twenty-third paragraph of the court's charge this language occurs: "and so armed, he would also have had the legal right to have approached Light R. Chaney in a peaceable manner, for the purpose of arriving at a friendly understanding andadjustment of their differences, if any." Chaney was the name of the deceased party. There was evidence of the fact that appellant was armed, and had approached Chaney and asked him about his previous threats, etc. This charge is not the law. This character of instruction has been heretofore condemned by this court in King's case, 51 Tex.Crim. Rep.; McCleary v. State,57 Tex. Crim. 139, and other cases. The doctrine was clearly laid down in Shannon v. State,35 Tex. Crim. 2. That case has been followed in all subsequent cases. Under certain circumstances the defendant has the right "to arm himself, seek his adversary, and demand an explanation." The law does not require this to be done in a peaceable manner and for the purpose of arriving at a friendly understanding. This must depend upon the circumstances of the particular case. In this case, however, the facts do not call for such a charge. Here the undisputed evidence shows that up to the time of the meeting with Chaney on the morning of the difficulty appellant had been seeking to avoid him. He was not seeking him for the purpose of having any kind of understanding. In fact, the meeting seems to have been, so far as appellant is concerned, unintentional and accidental. On the contrary, the testimony shows that Chaney had armed himself and was seeking the defendant for the purpose of carrying out his threat to take the life of appellant, which threat had been communicated to appellant. Under such circumstances the appellant had the right to arm himself, and when he and deceased met at the store the defendant had the right to demand of him his purpose in making such threats, and to know the truth of the statements made to him concerning such threats. When a man's life is threatened and his adversary is hunting him with a shotgun with the apparent purpose of executing such threats, the law does not require the threatened party to approach in a peaceable manner for the purpose of having afriendly understanding and adjustment with the party thus threatening his life. It is true, however, that the law does not permit a man whose life is threatened to attack his adversary simply because of such threats when such threats are unaccompanied by some act manifesting an intention to execute the same, but it does permit him to arm himself as a protection against such threatened injury, and it does permit him, if he be in doubt as to the truth of such threatening language, to inquire as to the truth without in any way impairing his right of self-defense. The lower court, therefore, is instructed upon another trial of this case to conform the charges to the views herein enunciated.

The motion for rehearing is overruled.

Overruled.