Richardson v. State , 94 Tex. Crim. 616 ( 1923 )

The complaint of the receipt of evidence to the effect that the deceased bore a good reputation for peace and quietude is not sound. Appellant admitting the homicide and endeavoring to excuse it upon the ground of self-defense, introduced evidence of an attack or an apparent attack by the deceased at the time he was killed and that prior thereto he had made threats to kill or do injury to the person of the appellant. It was competent for the State to meet such testimony by the evidence of the reputation mentioned. The expressions in the Arnwine cases,50 Tex. Crim. 254 and 477, to the contrary turned upon the construction of the statute from which we quote:

"Where 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 threat so made. In every instance where proof ofthreats has been made, it shall be competent to introduceevidence of the general character of the deceased. Such evidence shall extend only to an inquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made." (Art. 1143, Penal Code.)

Reference, however, is made to some decisions of this court. One of these — Russell v. State, 11 Texas Crim. App. 289 — makes no reference to uncommunicated threats. It simply held that Russell claiming to have acted in the defense of his life against the aggression of the deceased and having introduced evidence that the deceased had made threats against the life of the appellant, of which the accused was informed, the trial court was in error in excluding the evidence of the character of the deceased. Sims case, 38 Tex.Crim. Rep., if we properly comprehend it, was not one in which communicated threats were relied upon as a justification for the receipt of evidence of the reputation of deceased. Quoting from the opinion, it is said:

"It was shown by the bill that said testimony was admitted after defendant had introduced evidence of threats made by the deceased against him. We think the action of the court in this respect was proper."

In Rhea's case, 37 Tex.Crim. Rep., also cited in Arnwine's case, it was held that proof of the good character of the deceased was accepted on the ground that the appellant had proved that a previous difficulty had taken place and that threats had been made against the appellant by the deceased. We observe nothing in the case which indicates that the threat mentioned was communicated. The statute, as it will be noted, is subdivided. The first paragraph, doubtless, is restricted to communicated threats, and the right to justify the homicide because of them limited to occasions upon which the person killed, by some act then done, manifests an intention to execute the threat. The other subdivision, however, is general and appears unrestricted in the statement that in every case where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. This latter statement may, we think, furnish a statutory basis for the receipt of evidence of the good character of the deceased where uncommunicated threats are proved; whether so or not it does not, in our judgment, restrict the common law rule relating to the receipt of evidence of threats and the character of the deceased in homicide cases. While uncommunicated threats do not afford justification, proof of them is held admissible in cases of self-defense where there is an issue as to who was the aggressor. Communicated threats afford aid to the jury in determining the state of mind of the accused so that the matter may be viewed from his standpoint. Uncommunicated threats bear upon the disposition of the deceased towards the accused and are usable to aid the jury to solve a controverted issue touching who began the difficulty when such issue is material. The court in this case informed the jury of the purpose of the un-communicated threat. On the subject under discussion, we quote from Wigmore on Evidence, Sec. 110:

"Where on a charge of homicide the excuse is self-defense, and the controversy is whether the deceased was the aggressor, the deceased's threats against the accused are relevant. The deceased's design to do violence upon the defendant is of some value to show that on the occasion in question he did carry out, or attempted to carry out, his design. Moreover, it is the fact of his design, irrespective of its communication to the defendant, that is evidential."

From the same author, we quote Section 63:

"When the issue of self-defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action: * * * There ought, of course, to be some other appreciable evidence of the deceased's aggression, for the character — evidence can hardly be of value unless there is otherwise a fair possibility of doubt on the point."

As pointed out in the original opinion, the declaration in question in Arnwine's case is out of harmony with both prior and later decisions. See Jirou v. State, 53 Tex.Crim. Rep., and the other cases to which reference is made in the original opinion.

The form of the question put to the witnesses upon the reputation of the deceased is made the subject of discussion in the motion, though frankly we do not find the point made in the bill. However, treating it upon its merits, the question raised is that the statute on threats (Art. 1143, P.C.) declares that the inquiry shall extend only to whether the deceased was a man of violent or dangerous character or kind and inoffensivedisposition. The language in which the proof was made was that the general reputation of the deceased for peace and quietude was good. The question was framed in language often found approved in the reports. One who is of a quiet and peaceful disposition is not of a violent and dangerous one. One is peaceable who is not quarrelsome. Webster's Dict. A peaceful man is one who is quiet and harmless in his behavior. Cyclopedic Dict., page 678.

It is also suggested that as used in the statute, the words "general character" are distinguished from and do not mean the same as "general reputation." It occurs to us that it would be a harsh rule against the accused to place upon it such limitations in his effort to justify upon the ground of threats communicated to him. Especially is this true, bearing in mind, the clause of the statute touching the defense of threats accompanied by some act indicative of an intention to carry the threat into effect, is a part of the law of self-defense, and the evidence is to be viewed from the standpoint of the accused. He may well know the general reputation of the deceased for violence and be able to establish it, but to confine him to the proof of the character and give it the limited meaning contended for, would put the accused at a great disadvantage, and place limitations upon the statute passed for his benefit which, in our opinion, were foreign to its purpose. On the subject, we quote from Mr. Wharton's work on Criminal Evidence, Vol. 1, Sec. 58;

"Character, in the sense in which the term is used in jurisprudence, means the estimate attached to the individual by the community, not the real qualities of the individual, as conceived by the witness. It is not what the individual really is, but what he is reputed to be, generally, by the society and the community in which he moves and resides. * * *

The majority of American cases make no distinction between the use of the words ``character' and ``reputation,' using them interchangeably one for the other, though a few cases maintain that the distinction between the two words should be observed."

The views of Mr. Wharton are the same in substance as are expressed in the text in Cyc. of Law Proc., Vol. 6, page 892, in support of which text numerous cases are cited. This principle is not in conflict with the rule which forbids the proof of a specific act by evidence of reputation.

The charge submitting the law touching the use of a deadly weapon is quoted in the original opinion. It is criticised in the motion for rehearing in that it contains the words "under circumstances which reasonably indicated an intention to murder or inflict serious bodily injury upon him." Appellant insists that this is an undue restriction upon the right of the jury to apply the legal presumption intended by Article 1106 of the Penal Code. Doubtless, the charge would be more regular if it had used the words of the statute instead of those quoted above. However, the injurious effect of the departure seems questionable at least. Under the statute, the presumption of the intent to kill arises when at the time of the homicide the person killed isusing a deadly weapon. The charge under consideration may convey the idea that the presumption would prevail if the circumstances indicated that deceased was using a pistol. Independent of the paragraph of the charge in question, the court told the jury to acquit if, from the words or acts of the deceased, as viewed from appellant's standpoint, in the light of all the facts within his knowledge, it reasonably appeared to him that he was in danger of death or serious bodily harm, and on these matters the jury was, in the same paragraph, told to resolve any reasonable doubt they might have in appellant's favor.

In Gunn's case, No. 6459, recently decided, this court by a majority opinion, upon the evidence touching the use of a deadly weapon not materially different from the present case, held that although there was no reference in the charge of the trial court to the presumption arising from the use of a deadly weapon, a reversal was not required. In that case, the court charged, as in this one, upon the law of self-defense, embracing both real and apparent danger, but did not attempt to charge on the presumption mentioned in Article 1106 of the Penal Code. In the opinion mentioned, this ruling is based upon the terms of Article 743 of the C.C.P., in which a reversal is forbidden, because of a fault in the charge not calculated to injure the rights of the accused nor to militate against the fairness and impartiality of his trial. The facts revealed in Gunn's case, supra, were not more cogent to show an absence of injury than those in this one, and in the instant case, the charge was more favorable to the appellant in that it did embrace a specific charge upon the presumption named in Article 1106, supra. If there be error against the appellant in the manner in which the jury was, in the instant case, advised of the presumption arising from the use of a deadly weapon by the deceased, it was not of that prejudicial character which would, in view of Article 743, supra, authorize a reversal of the judgment.

From what has been said, it follows that, in our judgment, the motion for rehearing should be overruled, and it is so ordered.

Overruled.