Caraway v. State , 98 Tex. Crim. 119 ( 1923 )

Under an indictment for murder, appellant was convicted of manslaughter; punishment fixed at confinement in the penitentiary for a period of five years.

The appellant and Will Jackson lived upon adjoining farms. Will Jackson's wife was appellant's sister. Appellant fired at Will Jackson and unintentionally killed Marvin Leo Jackson, the infant son of Will Jackson. The following is appellant's version: Some weeks earlier, he and Will Jackson quarreled. Jackson said to appellant: "You go on home and get your d__n gun, come back and I will buckshot it with you." Appellant replied: "You stay on your side of the fence, and I will stay on mine, d__n you." On the day of the tragedy, appellant's dog caught a hog which was in his field, and he threw the hog over the fence. Will Jackson accosted appellant with an epithet and said: "That will be one hog you will have to pay for." Appellant, using an epithet said: "I will be back here directly to put the rest of them out." Jackson went in his house and appellant went for his gun. On his return, Mrs. Jackson was trying to drive some pigs out of appellant's field. He picked up a stick to help her. They quarreled and she was ordered out of appellant's field. She grabbed his gun and said she would take it away from him. Thinking she was trying to disarm him, he struck her with the stick. During the scuffle, Jackson came out of his door with his shotgun. He fired, a number of shots striking the appellant. The appellant then fired both barrels of his gun at Jackson.

The State's version is to the effect that when appellant dogged the hog and threw it over the fence, Jackson said, "Dad blame your hide, you will pay for it." Appellant said, "I will be back here in a minute with that gun." Mrs. Jackson went into the field and was running the pigs out. She told Jackson that the appellant was coming with his gun. Jackson told appellant that his fence was bad and that he had no right to hurt the hog. Appellant picked up a sprout and hit Mrs. Jackson with it. She gave him a shove and he hit her in the mouth. Jackson ran for his gun which he had previously laid on the bed. After getting his gun, he put his head out the door and appellant fired both barrels of his gun at once. Jackson immediately returned the fire. The shots fired by appellant killed the little boy, Marvin Leo Jackson, who was sitting in the kitchen door with his feet on the step.

The trial took place about a year after the indictment. Two attorneys had previously been employed by the appellant. One of them was absent for business reasons at the time of the trial. The other, a skilful and experienced lawyer, was present and faithfully represented appellant in conducting the trial. In refusing to postpone the trial, the court was not in error. Walker v. State, 13 Texas Crim. App., 618; Usher v. State,47 Tex. Crim. 93; Branch's Ann. Tex. P.C., Sec. 342.

In shooting at Will Jackson, appellant unintentionally killed Marvin Leo Jackson. His guilt or innocence depends on whether the act of firing at Will Jackson was culpable or justifiable. Richards v. State, 35 Tex.Crim. Rep.; Branch's Ann. Tex. P.C., Sec. 1901. If appellant, in firing at Will Jackson, was justifiable under the law of self-defense, the fact that the shot intended for Will Jackson killed the deceased constituted no offense. Plummer v. State, 4 Texas Crim. App., 310; McCullough v. State, 62 Tex.Crim. Rep.; Spennell v. State, 83 Tex. Crim. 18; Branch's Ann. Tex. P.C., p. 1055. This the jury was told in the court's charge. If the shot which killed the deceased was fired at Will Jackson under the influence of a sudden passion, arising from an adequate cause and rendering the mind of the appellant incapable of cool reflection and the killing was not justified under the law of self-defense, the offense was manslaughter. Clark v. State, 19 Texas Crim. App., 495; Branch's Ann. Tex. P.C., p. 1055. The jury was so instructed.

If Will Jackson attacked the appellant and he fired to defend his life against such attack, but the attack was brought on by his own words or conduct reasonably calculated to bring on a difficulty and was so intended in order that appellant might kill or injure Will Jackson, the firing of the shot was not justifiable under the law of self-defense. Branch's Crim. Law., Sec. 464. The evidence warranted the trial court in so instructing the jury and in doing so, no error was committed.

There was sufficient evidence of malice toward Will Jackson to warrant the charge on murder. Besides, the verdict eliminated the question of murder.

No pleading other than a charge of murder of Marvin Leo Jackson was necessary to render relevant evidence which would have been proper had the shot killed Will Jackson instead of his son. In a trial for murder, all attendant facts are admissible in evidence. Cyc. of Law Proc., Vol. 21, p. 689. So with the previous difficulties. Washington v. State, 8 Texas Crim. App., 377; Howard v. State, 25 Tex.Crim. Rep.; Branch's Ann. Tex. P.C., Sec. 1881.

The criticism of the charge on manslaughter because of the use of the term "the provocation must arise at the time" is without merit. In the same paragraph of the charge this expression is qualified and explained to the jury in appropriate language showing that while the provocation must arise at the time the offense is committed and must not be the result of the former provocation, yet the former conduct and relations of the parties may be considered in connection with the present provocation. The language selected is, in substance, such as has frequently been sanctioned by this court, nor does the fact that the court used the words "sudden passion" render confusing or contradictory the further statement in the charge on manslaughter that the jury may take into consideration the facts and circumstances occurring prior to the homicide. The passion may be sudden though antecedent matters contribute.

There was no error, we think, in the court instructing the jury touching the suspended sentence; that if they found the appellantguilty of manslaughter and fixed the punishment at not exceedingfive years, they were privileged to suspend the sentence.

All complaints of the manner of trial have been considered. However, none of them furnish ground for reversal.

Finding nothing in the record which authorizes a reversal of the judgment, it is affirmed.

Affirmed.

ON REHEARING. June 27, 1924.