Dennis v. State , 101 Tex. Crim. 454 ( 1925 )

According to the evidence, Em Teagle, a negro woman and wife of George Teagle, a neighbor of the appellant, used in the hearing of the appellant, some impudent language to Mrs. Smith a white woman. The deceased, Wynne, was a constable of the precinct and an advisor of Mrs. Smith. Circumstances suggest that the incident was reported to Wynne by Mrs. Smith. Wynne gathered a company of four men, besides himself, and after going to the home of George Teagle and taking therefrom the guns that were found upon the premises, went at night to the home of the appellant after he and his family had retired, for the purpose of arresting Em Teagle. No complaint had been filed against her, and in the possession of the officers was no process for her arrest and no search-warrant. She was chargeable with no offense save that growing out of the alleged impudence to Mrs. Smith, the occurrence of which was a controverted issue. The appellant, when called out of his bed, denied that Em Teagle was in his house. This was controverted. As a matter of fact, she and her baby were there; also appellant's wife. The deceased and his companions insisted that the woman, Em Teagle, was in the house and demanded that it be searched At least two members of the party had pistols in their possession. There were guns in the car which, according to the appellant, were in possession of the parties who were demanding admission to his residence. While the deceased was at the door which was opened, a shot was fired by the appellant from inside the house and the deceased was killed.

The State's witnesses claim that the deceased did not open the door but merely knocked upon it. Appellant's testimony was to the effect that the deceased kicked the door open. Upon that issue the State's witnesses were impeached by contradictory statements testified to by the sheriff, by members of the grand jury and others. Appellant, in his testimony, disclaimed knowledge of the identity of the parties and said that they did not ask for Em Teagle but for George Teagle, her husband. During the transaction, appellant's wife became very much excited and alarmed and expressed fears of death at the hands of the parties who were on the premises.

The offense, if any, against Em Teagle was a trivial one. The conduct of the constable and others seems out of harmony with the mission on which it is claimed they were engaged. Their manner, their arms and their attitude, even from the State's testimony were calculated to alarm the appellant and his family and to put them in fear of injury. Even if the purpose of the posse was to make an arrest of the negro woman, we are aware of no law which, for the alleged offense, would have justified the manner in which it was undertaken; nor under the circumstances, the making of the arrest without process. The appellant's act, whether viewed from his standpoint or that of the State, was within his rights in denying admission to his house. He testified that the posse did not announce their purpose nor declare that they were officers, and that these facts were unknown to him.

In this state of the record, the statements of Wynne to the witness Harrell before they came to the appellant's home were manifestly improperly received. The law authorized him to act upon the facts within his knowledge. There is no testimony and no contention that he heard or was in a position to hear Wynne tell Harrell that he was going to the appellant's home to make an arrest of Em Teagle. In holding this testimony improper and under the facts of the case prejudicial, this court, in the original opinion, announced, we think, a correct legal proposition supported by sound reason and numerous precedents. That principle is, that one acting in the defense of his person or his home, is not to be affected by the motives of others unknown and undisclosed to him. This is announced in terse and pertinent language of Presiding Judge White of this court in Brumley's case, 21 Tex. App. 240[21 Tex. Crim. 240], in which are cited both judicial decisions and text-writers. This principle has been adhered to by this court, so far as we are aware, without departure, as is illustrated by many decisions collated by Mr. Branch in his Ann. Tex. P. C., Sec. 1930.

Upon reflection, it is believed that the testimony of Mrs. Smith to the effect that Em Teagle made to her, within the hearing of the appellant, the remarks which Mrs. Smith imputed to Em Teagle, as set out in the original opinion, were not improperly received in evidence. That the remarks were made within the hearing of the appellant, it is true, was controverted, but if the jury believed that he did hear them, they might have been regarded as furnishing some explanation to the appellant of the conduct of the deceased immediately before he was killed.

According to the appellant's testimony, all members of the posse were armed. The State's evidence is affirmative to the effect that the deceased and one other were armed with pistols, and to the effect that in the automobile some forty feet from the appellant's house there were several shotguns. Whether these guns, at the time the fatal shot was fired, were in the hands of the members of the posse is converted. The use of weapons under the circumstances, we think, rendered it incumbent upon the court to instruct the jury in accord with Art. 1106, P. C., wherein it is said in substance that where the assailant is using a deadly weapon, the legal presumption prevails that he intended to inflict injury. The nature of the case, that is, the evidence adduced is not such as to warrant our holding that in failing to embrace the substance of Art. 1106 in the charge, there was an absence of injury to the accused.

After a careful examination of the record, we are constrained to hold that the motion for rehearing should be overruled, which is accordingly done.

Overruled.