Anderson v. State , 86 Tex. Crim. 207 ( 1919 )

Appellant presents to this Court an able and exhaustive motion for rehearing.

The first contention in said motion, is that we were mistaken in holding that the trial court did not commit error in failing and refusing to give in his charge to the jury, Articles 1105 and 1106, of Vernon's Penal Code. Looking over our opinion, we find nothing therein referring to said articles, nor do we find anything relative to the failure of the trial court to charge said articles, in any exception made by the appellant to the charge of the trial court, or in any requested instruction. Appellant requested but two special charges, both of which were given; and the only exception to the court's charge, which by any process of induction, remotely touches said articles referred to, is the exception to paragraph 14 of said charge, which paragraph we reproduced in our opinion, the exceptions to same being as follows:

"Defendant excepts to paragraph XIV of the Court's main charge, which is as follows:

"``You are charged that if you believe from the evidence that at the time Otto Smith, the deceased, was shot by Ray Anderson, if he was so shot, that Will Smith made an attack upon Ray Anderson and F.W. Anderson, or was about to make an attack upon the said Ray Anderson and F.W. Anderson, or either Ray Anderson or F.W. Anderson, with a gun capable of producing death or serious bodily injury, then in that event the law presumes that Will Smith intended to Kill Ray Anderson or F.W. Anderson, or both.'

"For the reason that the court limits the rights of the defendant, Ray Anderson, to shoot and kill only upon an unlawful attack made by Will Smith, when the law would give him the right to act in defense of himself or his father, F.W. Anderson, whether the attack made by Will Smith was lawful or unlawful, if it reasonably appeared to the defendant at the time that his life or the life of his father, F.W. Anderson, was in danger or the defendant or his father was in danger of serious bodily injury, and because said law as given in said paragraph does not apply to the facts of this case.

"Defendant further excepts to paragraph XIV of the Court's main charge because it limits the presumption of the law to an attack made by Will Smith with a gun capable of producing death or serious bodily injury upon the defendant or his co-defendant, also does not instruct the jury that if they have a reasonable doubt thereof they should find the defendant not guilty. In other words, it does not instruct the jury what their verdict Should be if they found the facts therein set forth to be true."

A careful reading of the above shows that the first reason assigned for the alleged error in said charge, is that the same should have given to appellant the right to act in defense of himself or his father, whether the attack of Will Smith was lawful or unlawful, if it reasonably appeared to appellant that his life, or the life of his father, was in danger, or that there was danger to either of serious bodily injury; and the second reason assigned, is that said charge limits the presumption of the law to an attack by Will Smith with a gun capable of producing death or serious bodily injury.

In our opinion, we quoted paragraph 13 of the charge, which explicitly tells the jury that if Will Smith shot at appellant or his father; or raised a gun as if to shoot at either of them; or shot the car in which appellant and his father were at the time, and this action, or any other act of said Smith, viewed from the standpoint of the defendant or his father, created in the mind of appellant a reasonable expectation, or fear of death, or serious bodily injury to himself or his father, and acting thereon, he shot and killed the deceased, he would not be guilty, and we are unable to see how the court could have more clearly met the points made in the first of said excepting paragraphs above set out. As stated in our original opinion, the court gave to the jury pointed instructions to acquit appellant if Will Smith even raised the gun, whether such raising was lawful or unlawful, and whether said gun was loaded or unloaded, a deadly weapon, or not a deadly weapon. Multiplication of instructions which do not add to the rights, or make clearer the defense of one accused, is useless, and can but confuse the issues. Appellant testified that Will Smith raised the gun and shot, and struck the car in which he, appellant, and his father were, and that defending himself against such action, he shot and killed deceased.

As to the second reason assigned in said quoted exception to paragraph 14, we observe that the language of the court's charge, in paragraph 14, is substantially that of Article 1106, Vernon's Penal Code, in so far as the same applies to the facts of this case. There was no sort of claim by appellant, and no such possible conclusion deducible from any of the evidence, that Smith contemplated maiming, disfiguring, or castration. The only possible conclusion from the evidence and appellant's testimony, was that Smith intended either murder or serious bodily injury. So concluding, the trial court, in paragraph 14, charged, as set out in our original opinion, that if Smith made, or was about to make an attack on appellant or his father, with a gun, capable of inflicting death or serious bodily injury, then the law presumes that he intended to kill or inflict serious bodily injury upon one or both of said parties. The language of Article 1106 is, that if the weapon used is such as would have been calculated to inflict murder, etc., it is to be presumed that the person using it intended to inflict the injury. We are unable to appreciate any difference in the language of said article and that of the charge in the instant case, and believe that the use of the word "capable," as used in the charge and applied to the weapon used, rather than the word "calculated," which is used in the statute, is the use of a stronger word, and one more favorable to appellant. It is clear that if the gun used was not capable of inflicting death or serious bodily injury, it could not be calculated to effect that object.

In our original opinion we held the court's charge in paragraph 16, to be a correct statement of the law. Said paragraph is set out in said opinion, to which reference is here made. The fact that after the difficulty between the parties, originating over the division of the feedstuff, the parties met a time or two, and exhibited animosity towards each other, changes neither the fact of what caused said difference nor the law applicable thereto; and regarding the attack made on this part of our opinion, in the motion for rehearing, we need only affirm that there was but one difference shown to exist between the parties, and that it arose out of the division of the feed crop, and was correctly referred to in the court's charge; but we further observe that where the trial court gave to appellant a charge on his right of self-defense, as was done in this case, unlimited by any charge on provoking the difficulty, or other theory of imperfect self-defense, a charge on appellant's right to go armed to the place where he met the deceased, is unnecessary. See Branch's Ann. Penal Code, Section 1150; Crippen v. State, 80 Tex. Crim. 293, 189 S.W. Rep., 496; Williams v. State, 83 Tex. Crim. 26, 201 S.W. Rep., 189.

The record in this case shows that appellant had a shotgun at the time of the homicide, and was in a public road. He met the deceased and his companions in front of a neighbor's house, and had not gone there to see them and seek a reconciliation or demand an explanation. It is so well known to every citizen that any man has an absolute right to carry a shotgun in a public road, that it would hardly seem necessary to tell them so when on the jury, but in this case the trial court not only gave to appellant his unlimited right of self-defense, but also told the jury that appellant had the right to be where he was, armed.

We have given this case our full and careful consideration, and are unable to see any point wherein appellant was not given, in every sense, a fair and impartial trial. The charge is an exceptionally full and comprehensive presentation of the law as applicable to the facts. Every special charge asked was given. For the killing of a man, as shown by the State's testimony, who was seated in a buggy, by the roadside, talking to a neighbor, unaware of whom was in the approaching automobile until just before the fatal shot was fired, the jury might have inflicted a graver penalty, but for their consideration of mercy, or the efforts of the able attorneys representing the appellant.

Being unable to agree with the contention made in said motion, the same is hereby overruled.

Overruled.