Wheelis v. State

Hurt, Judge.

This was a conviction for manslaughter. From the statement of facts it appears that deceased, Hugh Mitchell, had, on divers occasions, theatened to take the life of appellant, especially if appellant should speak to him; and that these threats were communicated to appellant. Also that, just before the homicide, while in the saloon, deceased let fall some pieces of silver coin on the floor, which, becoming scattered and causing some delay in gathering up, appellant said: “Hugh, here lies a piece.” Deceased replied, “I have told you and sent you word, Matt Wheelis, you d—d son of a bitch, never, to speak to me;” to which appellant replied, “all right,” and went out at the back door of the saloon. When out, he called to Doctor Miller, uncle to deceased, to come out, that he wanted to talk to.him. Miller went out and they engaged in conversation, appellant telling Miller, in substance, that he “couldn’t stand this;” “I will kill him; I must kill him,” in a rather loud tone of voice. While these remarks were being made, deceased, still in the saloon, turned around and walked from the counter to the stove and commenced whittling. He stretched up his head, as if listening, then shut up his knife and started out, putting his knife in his pocket. When he had got about one-third of the way out, he put his hand into his pocket and got his knife again, acting as if opening it. When he got out of the back door the pistol fired and deceased was shot by appellant.

Several persons witnessed these facts, whereupon appellant’s counsel moved the court to compel the State to introduce all the eye witnesses to the transaction; which was denied, and an exception to the ruling was noted.

It seems from the brief of the counsel that the Hunnicutt opinion (20 Texas Ct. App., 632) is so construed as to require the State to introduce all the testimony of witnesses to the transaction in all cases. My brethren do not, nor did they in that case, intend to convey any such idea. It is expressly stated in that case and in the Phillips case (22 Texas CVt. App., 139) that this matter is in the sound discretion of the court. That there may be cases in which the rule would not apply, is clearly stated. We advise counsel to re-read the Hunnicutt case, and it will be seen that no general rule is attempted to be stated. There was no error in refusing the motion.

As before stated, deceased had threatened the life of appellant, and of these threats appellant knew. Just before the homicide, deceased had acted in a manner calculated to produce serious apprehension that these threats would be put into execution. At the time the fatal shot was fired, the conduct of deceased was susceptible of two constructions: the one, innocent; the other, threatening. Now, under this state of case, what instruction should be given the jury? Abstract propositions? No; they will not alone suffice, though correct.

There is but one issue presented, viz: Had the appellant reasonable grounds for fearing death or serious bodily harm? To decide this issue correctly, the relations of the parties to each other, their feelings towards each other and the nature of those feelings, should be known to the jury. And not only should this be known, but the charge of the court should be so framed as that the jury might correctly comprehend the purposes for which the facts are admitted in evidence. They can be so presented as not to be upon the weight of evidence.

Keeping in mind the issue, to what facts could the jury look in determining the issue? Clearly to all the facts; to those transpiring at the time, as well as those occurring before. If deceased had threatened appellant’s life, this alone would not justify the homicide. To justify under threats it must be shown that, at the time of the homicide, the person slain, by some act then done, proposed to execute the threats. The threat being to kill, he must have manifested an intention to execute that threat.

How, if the act done manifests an intention to kill, when viewed alone—disconnected from the threat—then the threat would avail nothing. The right of self defense would remain with the accused, independent of the threats. But suppose the acts of the deceased, standing alone, were harmless in their import, but of a serious and deadly character when viewed in the light of the threats (which was a phase of this case); in such case the threats become of the first importance.

Taking with us these observations, let us notice a special charge requested by appellant and refused by the court. It is as follows: “The jury are further instructed that, in determining the existence of actual or apparent danger, they are to view the facts of the case* from the standpoint of the defendant, placing themselves in the position of the defendant at the time of the killing, taking into consideration the threats made by deceased against defendant—if any were made—the general reputation of the deceased for violence, if such has been proved, and the language and conduct of the deceased just before and at the time of the homicide, if such be in proof, in determining the guilt or innocence of the defendant.” This charge was demanded by the most vital issue in the case, and should have been given. The learned trial judge refused to give this special instruction because he believed its substance had been already given in the general charge.

We have given the charge careful and repeated examination, but fail to find this refused charge incorporated in any form in the charge of the court. The refusal was error, for which the judgment must be reversed and the cause remanded.

Opinion delivered March 18, 1887.

Reversed and remanded.