Turner v. State , 41 Tex. Crim. 329 ( 1899 )

Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of two years, and prosecutes this appeal. This is the third appeal in this case. 46 S.W. Rep., 830; 51 S.W. Rep., 366. The statement of facts is not materially different on this trial and on the former trial. For a report of the testimony had on the former trial, see 46 Southwestern Reporter, 830.

Appellant contends "that the prosecution could not be maintained under the indictment, inasmuch as defendant had been tried and acquitted at previous terms of this court of murder under the indictment, and that said indictment had become functus officio, and that a prosecution for manslaughter could not be maintained under said indictment." The rule and practice are otherwise in this State.

Appellant insists that the court erred in refusing to sustain his objections to the admission of certain testimony which he claims indicated malice on the part of appellant in the homicide, and which could not be introduced on a trial for manslaughter. We do not believe this contention is sound. The evidence complained of was for the most part res gestae. All was relevant as pertaining to the transaction, and tended to show the animus or state of mind existing between the parties. Even if it be conceded that some of said testimony suggests malice, yet it would be exceedingly difficult to draw the line in a trial for homicide between the testimony that was relevant to any particular grade of unlawful homicide, so that, as a general proposition, all testimony connected with the homicide, and tending to shed light on it, either as res gestae or as indicating motive, ought to be admitted. We apprehend, however, appellant does not make any serious contention that said testimony was not admissible, but merely raises the objection to the evidence in order to reinforce himself in the assertion of his next proposition.

On the trial the court only submitted manslaughter and self-defense. Appellant prepared and presented to the court a charge to the effect that, if the jury believed the testimony introduced showed appellant was guilty of murder in either the first or second degree, to acquit him, inasmuch as he had been previously tried and acquitted for said offense. In that connection he cites us to Parker v. State, 22 Texas Criminal Appeals, 107; Fuller v. State, 30 Texas Criminal Appeals, 562; Carter v. State (Texas Criminal Appeals), 40 Southwestern Reporter, 498; and a number of other cases. The Parker case, supra, undoubtedly is authority for the proposition that where an accused has been convicted of manslaughter, under an indictment charging him with murder, and a new trial has been granted, on a subsequent trial of the case it would be improper for the court to instruct the jury that, if they believed the evidence showed that defendant was guilty of murder of either the first or second degree, they would be authorized to find him guilty of manslaughter. And this rule has since been followed. It would therefore seem to be sound doctrine that on a subsequent trial of an accused person for manslaughter, where he had previously been acquitted of murder of the first or second degree, and there was evidence reasonably tending to show that he was guilty of murder of either the first or second degree, and not guilty of manslaughter, it would be the duty of the court, especially when requested, to instruct the jury that, if they believed the evidence established the guilt of appellant of either murder of the first or second degree to acquit him altogether. We note in this connection that the Assistant Attorney-General makes a strong argument in opposition to this rule, contending that inasmuch as the Fuller case, supra, holds that the rule does not apply where a party has been convicted of murder in the second degree, because malice, as stated in that opinion, applies to both degrees of murder, the same doctrine should apply where the accused has been convicted of manslaughter; arguing, as he does, and citing authority to the effect, that malice is also an essential ingredient of manslaughter. We are inclined to agree with the Assistant Attorney-General that malice does pertain to a charge of manslaughter, but not malice aforethought, for this is confined solely to murder. But however the rule laid down in Parker's case came about, it has been followed for a long time, and we are not inclined to overturn it. Conde v. State, 35 Texas Crim Rep., 98.

The only question then for our consideration is, was the testimony of such a character as to require the requested charge? We have examined the record carefully in this regard, — especially those portions which have been called to our attention by appellant's counsel in his able brief. Such expressions as appear to have been made by defendant before the homicide with reference to the deceased do not seem to indicate any malicious design; that is, malitia præcogitata, which characterizes murder. For instance, appellant is shown to have stated on one occasion, prior to the homicide, that deceased objected to his going to his house to see his daughter, and that he did not want to go there and raise a racket. And again, on the day of the homicide, he is shown to have stated that he guessed that, if deceased found out that he had been to an entertainment with his girl, he would stamp it out of him; that deceased was a better man physically than he was, and all that he had to defend himself with was his pocketknife. These expressions, to our minds do not indicate an aggressive mood on the part of appellant, but rather a spirit of forbearance on his part; that he had some apprehension that an attack might be made on him for his attentions to deceased's daughter; that he would endeavor to avoid same, but, if attacked, he would have to defend himself. The record also discloses some expressions of appellant made immediately after the homicide. For instance, his remark to Corbin, as he was being carried away from the scene of the difficulty, to the effect that he had killed Jennings, that he had cut his damned heart out; and also his expression to Dr. Elder, about the same time, when the doctor, after examining his cut hand, asked "if all his hollooing was about the little cut on his hand," to which defendant replied, "You just ought to see the other fellow." These expressions under some circumstances might suggest malice, but when it is remembered that the fight was just over; that appellant had been engaged in a serious struggle, in which he received several severe hurts and bruises, — in the light of the surrounding circumstances these expressions would indicate that they did not issue from a calm and deliberate mind, but from one greatly excited by passion. More especially is this true when viewed in the light of defendant's own testimony (and the jury were bound to regard the matter from defendant's standpoint). This shows that deceased was the aggresor in the difficulty; that he first approached appellant, who was attending to his own business, took him from the company where he was engaged in conversation, and at once began to vilify and abuse him; stating to him, among other things, that he had whipped his daughter that morning for going with him (appellant) the night before. His language, from all the witnesses who heard the conversation, was exceedingly denunciatory. He told appellant that he was no gentleman, and had no principle; that he was a coward and liar; and, when appellant retorted that he was another, he then struck him in the face a severe blow, which dazed him. Appellant had his knife in his hand at the time whittling, and, as they clinched, began cutting deceased. During the progress of the difficulty, and before the fatal blow was struck, the parties appear to have separated for a short interval, when deceased got a rock, and either struck, or was about to strike appellant. At this juncture he rushed upon him, and with the knife inflicted the mortal wound. In this connection it must be remembered, all the time, that appellant had reason to believe that deceased was armed and prepared for the conflict. Under these circumstances, it occurs to us that the only real issue in the case was manslaughter or self-defense. In the light of the facts, we fail to see how any honest jury could have rightly found appellant was not at the time of the difficulty excited by passion, for all the evidence tends to show this. And, moreover, it is difficult for us to understand how a jury could say that adequate cause did not exist. Deceased struck him the first blow, and appellant, who, of all the witnesses alone could know, states that the blow was a hard one and dazed and hurt him. This the law itself makes adequate cause; and, in addition, this blow causing pain was reinforced by other circumstances of a very aggravated character. The fact that immediately preceding the blow deceased informed appellant that he had whipped his daughter that morning for going with him, in itself, would excite passion in any honorable person, especially when that person was suitor of the deceased's daughter. Reviewing the entire record in this case, it occurs to us that the testimony relied on by counsel as a predicate for the requested charge does not tend to show that malitia præcogitata characterizing the offense of murder. On the contrary, under the evidence, appellant could only be convicted of manslaughter. The jury found him guilty of this offense, and assessed against him the lowest penalty, and we can see no reason to disturb their verdict. The judgment is affirmed.

Affirmed.

DAVIDSON, Presiding Judge, absent.