Spencer v. State , 156 Tex. Crim. 628 ( 1952 )

BEAUCHAMP, Judge.

Appellant was convicted on a complaint charging threat to take a life, and assessed a fine of $100.00 and 60 days in jail.

An agreed statement of facts in the case shows the usual conflict between the evidence of the witnesses for the state and for the defendant. The appellant and the injured party were engaged in driving trucks hauling rice from a farm to the cleaning plant. Rice was conveyed to a point by tractor where it met the trucks and loaded them by some process not described other than that each truck took its turn at receiving a load. Appellant and E. W. Applebee disagreed as to whose turn it was to receive the load from the tractor. A Negro boy drove ■up and each demanded the loading. The boy left the tractor and declined to decide the controversy between them. Applebee said he would take the tractor and load his car and he crawled up on it in preparation to do so. At this juncture he testified, as did some of the other witnesses, that the appellant reached for her gun, turned toward him with it and said: “If you move that tractor, that is one you wont get off of alive.” Seeing the gesture made by her and in view of her statement, he left the tractor and desisted from insisting on its load. When he did so she turned away and further trouble seems to have been averted.

This threat is denied by appellant and by her witnesses, but the jury has found against her and we are bound by their finding. The only question, then, is whether or not this threat is sufficient to constitute the offense for which she is convicted.

Appellant relies on Terence v. State, 137 Tex. Cr. R. 322, 128 S. W. (2d) 1211, which quotes from and construes Strong v. State, 95 Tex. Cr. R. 558, 255 S. W. 432. In the Terence case the statement is made that a conditional threat will not support a prosecution. We think this statement is too broad and is not supported by the opinion in the Strong case. Judge Lattimore, in writing the opinion, reviewed the conduct of Strong and the threats to kill his wife. It shows that he had made such threats on a prior occasion, that the condition had been violated and that he had not carried out his threat, or attempted to do so. He called his divorced wife, the mother of his four children, and told her that if he saw her on the streets again with another hian he would kill her. He did see her with another man and engaged the man in a fight. Under all of the circumstances, Judge Lattimore concluded that his threat was not seriously made and upon this conclusion reversed the case, even though Strong based his threat on a condition which he had no right to impose on his divorced wife.

While we cannot subscribe to a doctrine that a condition in a threat does in every case relieve the offending party from prosecution, it appears that our court has from the earliest date held that where the condition in a threat is one that the accused had no right to require it is then viewed as an unqualified threat. See opinion of Chief Justice Roberts in McFain v. State, 41 Tex. 385 (at p. 389). The converse also appears to be the rule.

In the case now before us it is without dispute that the appellant had the right to have her truck loaded first. She was on the ground first, according to the evidence of Humber, a state’s witness. The owner of the rice being harvested had informed her of this right.

Viewed in the light of the authorities, she placed in her threat a condition which she had a right to make. The evidence, therefore, will not support the conviction.

Article 1267, Vernon’s Ann. P. C. reads as follows: “A threat that a person will do any act merely to protect himself, or to prevent the commission of some unlawful act by another, does not come within the meaning of this chapter.” See also citation of authorities noted thereunder.

Appellant’s motion for rehearing is granted; the original opinion herein is withdrawn; and the judgment of the trial court is reversed and remanded.