Freeman v. State , 40 Tex. Crim. 545 ( 1898 )

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal.

It appears that appellant and deceased both lived in Guthrie, in King County. Appellant was clerking in a drugstore, and deceased was keeping a saloon. Prior to the date of the homicide the parties appear to have been friendly. Appellant owned a pet coon, and on that morning some one had turpentined it. When defendant discovered this, he made inquiries of several persons to ascertain who had done this, and denounced the party in very vindictive terms. He was informed by some one that probably the deceased, Potter, was the party. According to the theory of the State he prepared himself with a knife, and when he saw deceased returning from his dinner, he left the drugstore and intercepted him. He asked him if he had seen his coon that morning. Deceased told him that he had not. Deceased then asked him why he made the inquiry. Defendant replied that some damn son of a bitch had turpentined it. Deceased then remarked that he had had a hand in that, and that he must not use such language. Thereupon defendant told him if he had done so that he was a God damn son of a bitch, and deceased immediately struck him. The witnesses show that the parties exchanged blows for a short time, in which deceased was cut with a knife, and deceased then struck appellant, and knocked him flat on his back, and paused a moment as if to jump on him, but immediately walked off and left him. He went to his saloon, and a doctor was sent for, and his wounds dressed. He lingered for eight or nine days, and then died, as the physician states, from the effect of said wounds. Defendant states what occurred prior to the first blow struck by deceased substantially as do the other witnesses, but states that he got his knife out after he was knocked down; that he cut deceased while he was over him, and had him by the collar. There were a number of witnesses to the difficulty, and all of them testified that the cutting was not done in this manner. Their testimony shows that it was done immediately on first assault by deceased on the defendant, and before deceased had knocked defendant down. Appellant also states that he did not come from the drugstore and cross the square to intercept the deceased, but that he was then on his way to the hotel where he boarded, to get a bottle of medicine that he desired to use, and that the matter of the coon came up incidentally; though he stated that he had heard prior to that that deceased had turpentined his coon. In addition to this, there was some controversy as to the weapon used by appellant. Appellant himself testified that the cutting was done with the knife which was produced in court, and which was taken from his person after the homicide. This was a small knife, and not in very good repair, and appeared to be dull. He stated, however, that it was sharper at the time the cutting was done. On the part of the State there was testimony tending to show that the cutting was done with a large, bright knife, with blade about three inches long. It was also shown that appellant was a weakly man, and not the equal in physical strength to the deceased. This is substantially a statement of the facts, and is sufficient to present the bills of exception relied on by appellant.

Appellant objected to the witness Tackett stating that a short time after the difficulty, which occurred out on the square, appellant returned to the drugstore where he was employed, and that he saw him in proximity to the showcase where pocketknives and cutlery were kept; that he was there behind the counter. This evidence was objected to, because there was no testimony to show that any of the knives in said showcase were used by appellant in the difficulty; and because the evidence was calculated to mislead and prejudice the jury in the trial of said cause. As stated before, it was a matter of controversy between the State and the defendant as to the knife with which the cutting was done. The testimony of this witness shows that shortly after the difficulty appellant went behind that showcase, and was engaged there for some time, and had opportunity to replace the knife that might have been used by him. The knife found on him by the sheriff was after this transaction, and, as shown by some of the witnesses, the wounds of the character inflicted on the deceased could not likely have produced by the knife found on his person, and when found there was no blood on said knife. Moreover, the knife seen by the witnesses, and as stated by the deceased in his statement shortly after the difficulty, was a knife with a larger and brighter blade than that found on the defendant. The testimony of the State tends strongly to show that the knife found in possession of the defendant was not the knife with which the cutting was done, and that evidently said knife must have been disposed of appellant in some way between the difficulty and the time that he was arrested by the sheriff. When he was in the drugstore he certainly had an opportunity to make a disposition of that knife. We believe the testimony introduced was competent for the purpose indicated.

The same observations as to the testimony of this witness apply to the testimony of this witness Bradford. He testified that he kept in his drugstore, where appellant was employed, a lot of pocketknives of large size.

Appellant also objected to the introduction in evidence of the statement of deceased, made from thirty to sixty minutes after the difficulty, on the ground that same was no part of the res gestae. It appears from the statement made in the bill of exceptions that immediately after appellant cut deceased he went to his saloon, which was some sixty or seventy yards distant; that a doctor was sent for, and that before he came deceased fainted. As soon as he recovered, his wounds were dressed, and he then made a statement as to how the difficulty occurred. The witnesses place the length of time that elapsed between the difficulty and the statement at from thirty to sixty minutes, and there is nothing in the statement suggestive of any fabrication in regard to the statement. On the contrary, it appears to have been spontaneous, and as soon thereafter as deceased was in condition to tell how the difficulty occurred. Of course, a statement of this character should be as near in point of time as possible; but this is not absolutely essential. The main question is, does it appear from all the circumstances that the statement was spontaneous, and sprang out of and was a part of the transaction itself? If so, the testimony is admissible, though the statement may not have been made exactly contemporaneous in point of time with the wound inflicted. But in all such cases it must appear that the statement or declaration was spontaneous, and sprang out of and was a part of the transaction. See Fulcher v. State, 28 Texas Crim. App., 465; Lewis v. State, 29 Texas Crim. App., 201; Stagner v. State, 9 Texas Crim. App., 440; Lindsey v. State,35 Tex. Crim. 164; Ingram v. State (Texas Crim. App.), 43 S.W. Rep., 518.

There is nothing in appellant's objection to the argument of the district attorney as to the knife used by appellant. It was a legitimate argument, based on the testimony for the State in the case.

Appellant reserved a number of exceptions to the charge of the court. We have examined the same, and, in our opinion, none of them are well taken. The court gave a full charge on self-defense, and gave appellant the full benefit of both actual and apparent danger, and instructed the jury to regard the danger from appellant's own standpoint. He also instructed them that, if appellant slew deceased, but at the time he inflicted the mortal stroke deceased had made an assault upon him, which, from the manner and character of it, etc., caused him to reasonably believe that his life was in danger, or he in danger of serious bodily injury, he would have the right to slay deceased; and in that connection instructed them that if deceased at the time was armed with a weapon reasonably calculated to produce death or serious bodily harm, then the law would presume that the deceased intended to murder or inflict serious bodily injury upon the defendant. Appellant objects to this latter portion of the charge, because the evidence does not show that deceased had any weapon. This is true, but we fail to see how this charge could injure appellant, especially in view of the fact that he testified that he believed deceased had a knife, and was using it when he struck him.

Appellant also objects to that portion of the charge of the court on self-defense which instructed the jury that every person is permitted by law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicated to be necessary. We think this was exceedingly pertinent to the evidence in this case, because it certainly showed that deceased used nothing but his hands and fists in assaulting appellant, and he immediately began to cut him with his knife. This was presenting to the jury the issue as to whether or not appellant used more force than was reasonably necessary to protect himself from danger. The court's charge on the subject of self-defense covered all the issues in the case, and the special charges on this subject asked by appellant were not called for. The court, moreover, gave a full charge on the cause of the death of the deceased, to the effect that, if the wounds inflicted were not mortal, and were not the proximate cause of the death of the deceased, but that he died on account of gross neglect on his own part or that of his attendants, they would acquit appellant.

It is not necessary here to discuss the court's charge on assault with intent to murder, but certainly appellant could not complain because the court gave such a charge. We have examined the record carefully, and, in our opinion, the evidence supports the verdict, and the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.