Lewellen v. State , 104 Tex. Crim. 550 ( 1926 )

The appellant was convicted in the District Court of Bell County for murder, and his punishment assessed at twenty-five years in the penitentiary.

This is the second appeal to this court. The first will be found in 90 Tex.Crim. Rep., 236 S.W. 987. In the former appeal, the statement of the case is fully set out and we deem it unnecessary to reiterate the facts on this appeal.

In bill No. 1 complaint is made to the court charging the jury on provoking the difficulty, the objection being to the effect that the evidence did not raise this issue. This contention was decided against the appellant by this court upon the former appeal, and also in the case of Joyce v. State, a companion case, 90 Tex.Crim. Rep., 234 S.W. 896. The appellant also complains in said bill to the effect that if the court was right in charging on provoking the difficulty, he erred in charging the jury therein to the effect that, "If you believe from the evidence beyond a reasonable doubt that defendant went back into the restaurant, where the deceased was killed, and by his own wrongful act (if any there was) brought about the necessity of killing the deceased, and that the defendant provoked a difficulty with the deceased, with the wrongful and wilful intent," etc., instead of charging the jury that if they believed beyond a reasonable doubt that the acts or words, or both, of the appellant caused the deceased to attack the defendant, etc., then the right of self-defense would not avail. In support of this contention the appellant cites Stacy v. State, 86 S.W. 327; Smith v. State, 87 S.W. 151; Burkhardt v. State, 202 S.W. 514; Cotton v. State,240 S.W. 919. We are of the opinion that the authorities cited announce the proper principles of law, and that the opinion of this court in the case of Mason v. State, 88 Tex.Crim. Rep., fully sets out in detail the three requisites for the trial court to charge on provoking a difficulty. However, the difficulty we find in appellant's contention is not what the law is on the subject, but whether or not the court's charge on this point was sufficient to meet the requirements of the law on this issue. The trial court was evidently attempting to follow the authorities cited by the appellant and the Mason case, supra, and the charge, on the point criticized, that "the defendant provoked a difficulty with the deceased," etc., was equivalent to charging that the conduct, words, or acts must have caused the attack. Even if said charge, as quoted, was error, we do not think it was of such a prejudicial nature as to cause a reversal of this case, under Art. 666, 1925 Cow. C. P. (Art. 743 of the old code), which prohibits this court from reversing a judgment of the lower court on his charge unless same is calculated to injure the rights of the appellant or show that he had not had a fair and impartial trial.

The appellant also criticizes that portion of the charge on the converse of provoking the difficulty, contending that the court did not affirmatively charge the jury on this issue, but did so negatively. The court charged the jury, in effect, that if they failed to find from the evidence beyond a reasonable doubt that the defendant provoked the difficulty with the deceased, under the circumstances above stated, then the defendant's right of self defense would in no way be limited. While this charge is brief, and does not repeat the circumstances and the issues as set out in the charge relative to provoking the difficulty, we think the reference thereto is equivalent to restating them in this portion of the charge. At any rate, we think that the objection raised is insufficient to call for a reversal of the case, under the statute, supra.

The appellant also complains at and criticizes the court's charge on manslaughter and murder, found in paragraphs 7 and 11 of said charge. We are of the opinion that the charge, taken as a whole, is not susceptible to the criticism urged.

Complaint is also urged to the charge of the court, paragraphs 7 and 11 thereof, in which the court, in effect, charged the jury, in submitting these issues of the law, that if same was not in defense of himself against anunlawful attack producing a reasonable expectation, etc., the defendant contending that it was error to use the word "unlawful," as the appellant had a right to defend himself against any attack upon the part of the deceased, and the jury was likely to be misled by what the court meant by unlawful, and that the court, at least, should have defined to the jury what was meant by unlawful and unlawful attack. We think this charge is not free from the criticism urged, but that it is not of sufficient importance to require a reversal of the case, and that, taken as a whole, the jury was not misled by the use of the language employed by the trial judge.

Complaint is urged in bill No. 2 to the action of the court in permitting the witness Bond to testify, over appellant's objection, that by placing a ruler in one of the depressions made in the wall of the building by the bullet, it would point in a certain direction. Appellant contends that same was prejudicial and inadmissible, and was permitting the witness to give his opinion about a matter which did not require any expert testimony. We are of the opinion that the objection goes more to the weight of the testimony than to the admissibility of same, and that the court committed no error in admitting same.

After a careful examination of the entire record, we are of the opinion that there is no reversible error shown, and that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.