Holt v. State , 94 Tex. Crim. 46 ( 1922 )

ON REHEARING.

March 14, 1923.

HAWKINS, Judge.

The State has filed a motion for rehearing in which the correctness of the propositions of law announced in our opinion granting a rehearing to appellant and reversing the case is not questioned. But the matter is presented in a new light and from an entirely different angle. The State asserts that the statements proposed to be proved by Black involved no threat against appellant upon which self-defense could be predicated, but related to a matter which had already transpired before the homicide; that it involved no threat to do violence to appellant at some future time' against the execution of which he would have a right to protect himself, but when fairly construed meant only that deceased had said when appellant made the payment of the first thousand dollars he intended to discharge him from the “job”; the payment had been made, and deceased had done just what he said he would do, viz: discharged appellant long before the homicide occurred. If the State is right in its contention, then the law announced in reversing the judgment while correct was improperly applied.

It was proposed to prove by one Black that Rogers told him (Black) that deceased had said to Rogers, “As soon as that old S — of a b — (referring to appellant) pays me his. first thousand dollars, I am going to kick him off of the job”, and that Black communicated to appellant what Rogers had told Black. The bill of exceptions itself shows that “deceased had contracted to build a house for defendant; and that defendant was to work on said house as a carpenter; and that the defendant was to pay $1000 in fifteen days after the construction of said building had started; that the building was started on or about June 1, 1921; that immediately after the fifteen days defendant paid the deceased one thousand dollars, and was immediately discharged by the deceased.” The bill-also shows that there was testimony on the part of the State and appellant showing or tending to show that deceased had made many remarks with reference to “running or kicking him (appellant) off the job.” This spoken intention to “kick him off the job” or discharge him, made before he was “kicked off” or discharged became executed when the discharge actually occurred. Fairly construed the language did not involve a “threat” to do physical violence to appellant. There was no effort being made by deceased at the time of the homicide to “kick” appellant “off the job”; that had been consummated long before. Thus explained the remark proposed to be proven by Black is not a “threat,” and after appellant was in fact discharged from the “job” would not form a basis for a charge on threats in connection with self-defense. Black would not have testified to any threat to kill or hurt appellant, but it was proposed to prove by him the communication of a hearsay statement that deceased had said he intended to do just what he did do, that is to discharge appellant at a certain time. This was not disputed but was an admitted fact. Appellant himself testified:

“Mr. Thacker told me that it was best for me to get off the job; if I was not there, he would get along faster, or something to that effect. Before I got off the job and before I paid the $1000.00 I heard something that Mr. Thacker said he was going to do when I paid the money, a man by the name of Black was building the chimney, and he told me that Thacker said when I paid that $1000.00 I was not going to be on the job or on the ground any more. Mr. Black told me that.”

It will be seen from appellant’s own version of what Black told him what he (appellant) understood deceased to have meant. We gather from the statement of facts that Mr. Rogers, the party to whom deceased is supposed to have made the statement, was present in court, but was not called as a witness.

Our original affirmance correctly disposed of the case. From a misapprehension of the effect of the language which is claimed to have been a “threat,” we fell into error in a wrong application of a correct proposition of law in later reversing the judgment. The order granting appellant a rehearing and a reversal is set aside, and the State’s motion for rehearing is granted and a re-affirmance of the judgment is ordered.

Affirmed.