Tebo v. State

Conviction is for murder, punishment thirty years in the penitentiary.

Appellant presents several questions arising from exceptions to the court's charge. The only one discussed is the complaint at the failure to define and apply the law of murder without The other questions are not thought to present serious error, if any.

The court defined murder, and malice aforethought, and in a number of places advised the jury that unless appellant acted with malice in killing deceased his punishment could not be more than five years in the penitentiary. The complaint is that nowhere in the charge was the jury advised what constituted murder without malice. It is contended that such issue was raised by the evidence. If the issue was raised it is no answer to the complaint of a failure to instruct on it to say that the penalty inflicted shows that the jury found appellant guilty of murder with malice. The jury does not know to this day what murder without malice is unless someone has told them since the trial, for they received no information upon the subject from the court during the trial.

In 1927 the 40th Legislature, Reg. Sess. (Ch. 274) enacted that "Whoever shall voluntarily kill any person within this state shall be guilty of murder," thus re-defining murder. At the same time the old manslaughter law was repealed. The punishment for murder was fixed at death, or confinement in the penitentiary for life, or for any term of years not less than two. It was further provided (Art. 1257a) that either the State or defendant should be permitted to offer testimony as toall relevant facts and circumstances and the previousrelationship of the parties going to show the condition of mind of the accused at the time of the homicide which might be considered by the jury in determining the punishment. The Legislature, however, was not long satisfied to leave the law in such unrestricted condition so far as the penalty was concerned. The same Legislature at the 1st C. S., page 18, Ch. 18 (1257b), enacted that in all cases tried under the murder statute the court should define "malice aforethought" and tell the jury that unless from all the facts and circumstances they believed the defendant acted with malice aforethought, the punishment could not be longer than five years. Still not satisfied with the situation, the Legislature in 1931 (42 Leg., p. 94, Ch. 60) defined murder without malice, and directed how the jury should be instructed on the subject, as follows:

"In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence."

Thus, in effect, the Legislature put back in the statute in a general way the principles of the old manslaughter statute under the new name of "murder without malice," omitting, however, the particular things which had formerly been adequate cause.

The question here is, Do all the facts and circumstances here present raise the issue of murder without malice, that is, a voluntary killing upon adequate cause? In determining that question the inquiry may not be restricted to the facts at the immediate time of the killing, nor to a provocation arising at the time of the commission of the offense. The judgment of conviction in Riley v. State, 123 Tex.Crim. Rep.,59 S.W.2d 134, was reversed because of such a restriction in the court's instructions. See also Privett v. State,123 Tex. Crim. 86, 57 S.W.2d 1102, in which is quoted the language of Judge Lattimore in Butler v. State, 121 Tex. Crim. 288,51 S.W.2d 384, as follows:

"The remainder of said act is as follows: 'And in appropriate terms in the charge to apply the law to the facts as developed from the evidence.' Manifestly this means that, in a case where there is testimony raising the issue of murder without malice, the trial court must in appropriate terms instruct the jury, in substance, that, if they believe, or have a reasonable doubt thereof, from all the facts and circumstances in evidence, both those occurring at or about the time of the homicide, or prior thereto, that the mind of the accused was in such condition of sudden passion arising from an adequate cause as to render it incapable of cool reflection, and that such cause or causes, if any, was such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and that, while in such condition of mind, the accused committed the offense charged, then they could not assess a penalty of more than five years in the penitentiary."

Youngblood v. State, 121 Tex.Crim. Rep.,50 S.W.2d 315. In Lewis v. State, 89 Tex.Crim. Rep.,231 S.W. 113, this court said:

"Appellant was dependent almost wholly on his own testimony for the contention that the issue of manslaughter was in the case. If any evidence raised the issue, the determination of it passed from the court to the jury, under appropriate instructions. 'In a doubtful case the charge on manslaughter should be given.' Pickens v. State, 86 Tex.Crim. R., 218 S.W. 755; McLaughlin v. State, 10 Tex. App. 359[10 Tex. Crim. 359]; Arnwine v. State, 49 Tex.Crim. R., 90 S.W. 39. 'After all the evidence is in, if it is questionable in the court's mind as to whether the issue of manslaughter is raised, it should be resolved in the defendant's favor, and the matter passed to the jury.' Steen v. State, 225 S.W. 531."

Further in said opinion it is said:

"The jury had the right, and it was their province, to believe any part of the testimony of appellant or any other witness, which to them seemed reasonable, and, on the other hand, to reject all or any part to which they did not give credence. The jury evidently rejected appellant's testimony, in which he claims that deceased shot at him before he killed deceased. Having found against appellant on the issue of self-defense, they still had a right to believe that deceased and his son made an assault on appellant, and that the three of them became engaged in a fight and struggle, and from this alone, or in connection with previous abuse and assault with the monkey wrench, appellant's mind became so inflamed from anger, rage, resentment, or terror as to render him incapable of cool reflection, and that the facts and circumstances were sufficient to produce such a state of mind in a person of ordinary temper. If they should have reached such a conclusion from the evidence, no rule is given them in the charge directing them what to do under such a finding." See also Garland v. State, 106 Tex.Crim. Rep., 291 S.W. 244.

The name of deceased was Eddie Francis. For clearness in stating the facts he will be called by name, as will also appellant. Tebo worked on the night shift at a cafe. His testimony was that he had known Francis about two years. There had never been any trouble between them. On the night before the killing Francis was in the cafe engaged in an argument with the cook. Tebo asked Francis to "cut out" the cursing, whereupon he started to cursing Tebo and asked him outside to fight. They went outside and engaged in a fist fight. After it was over they went back in the cafe and Francis then cursed Tebo, calling him various kinds of s__ of b____, and said he was going to kill Tebo the next morning when Tebo got off from work. This was between two and three o'clock in the morning. After Francis left the cafe Tebo went home in a car to change his shirt. As he was starting back to the cafe Francis fired at him twice with a .22 rifle, one of the balls striking the car door near Tebo's head. When Tebo got back to the cafe he reported the shooting to Grelena, owner of the cafe. I quote now from appellant's testimony:

"When I got off from work that morning I went over to the taxi stand to use their telephone to report that he had shot at me and threatened to kill me. The reason I wanted to report it to the officers was because I was afraid of him and wanted someprotection. * * * I rang up the constable's department and the lady told me that he was not there then, so I waited awhile and rang him again. I put in two calls for him. I just stood around on the outside of the stand during the time I put in the first and second calls. * * * The first time I saw Eddie Francis that morning was when I was starting to put in the third call on the phone. I was standing over in front of the taxi stand when Eddie came up there. * * * I saw Peter Sampay over there that morning. I asked him could I use the phone. It was his taxi stand and his phone. Peter was setting in his car. When Eddie Francis walked up there he said, 'Well, Tebo, you taken advantage of me last night by my being drunk,' and I said, 'No, I didn't you cursed me and asked me to come out doors and I went,' and he said, 'God damn you, you didn't have no business coming out doors,' and I said, 'I don't want to have no trouble with you,' and he said, 'You remember what I promised you,' and he made an effort to get in his front pocket. He attempted to get in his pocket after something, that is what I mean. He did not raise his hands up in the air. He raised this one at his pocket. When he raised that hand I pulled my gun then. I pulled my gun and shot him; I shot him because I was afraid he would kill me — he said he would. * * * The last thing he said just before I shot him was 'You remember what I promised you,' those were the words he used, that was the last statement he used when he backed off, 'You remember what I promised you.' After he said that he reached in his pocket. He had something in his pocket but what it was I could not tell."

In his cross-examination Tebo repeatedly testified that he was afraid of Francis. He said he was not scared at the time he went home to change his shirt because at that time Francis had not shot at him, but that after this occurred he was afraid.

A number of witnesses testified to seeing the bullet hole in the car, describing its location, as did Tebo. Linson, the cook at the cafe, testified that Francis came into the cafe about one-thirty o'clock at night; that he was drunk and cursed witness, then cursed Tebo and invited him out to fight; that when they came back in the cafe Francis said to Tebo, "If I don't get you at the present I will get you the next day," to which Tebo replied, "Go on, I don't want that out of you." Douglass testified that after the fist fight Francis was again cursing Tebo as a s__ of a b____ and trying to get him to go out and fight again; accused him of being a coward; and said he couldn't get Tebo in the cafe, but would catch him when he came down on 10th Street. Stovall testified that when Tebo and Francis came back into the cafe after the fist fight Francis said to Tebo "We are going to have it again," or "I will see you again." Sampay, a State's witness, testified that when they came back into the cafe Francis said to Tebo, "I'll meet you again." This witness operated the taxi stand where Tebo went to use the telephone. He confirms Tebo's testimony about asking permission to use the phone and said he used it more than once. He saw Francis come up to the taxi stand, and say something to Tebo, but could not hear what was said. His testimony was not in accord with Tebo's on the issue of self-defense. Bounera, who worked at the cafe, confirmed Tebo's story about why he went to the taxi stand. Witness said the phone at the cafe was a pay phone, and when Tebo reported to him about Francis shooting at him witness told Tebo to go to the taxi stand where there was a free phone and report it to the officers. Every State's witness who saw the shooting testified that Francis and Tebo said something to each other immediately before the shooting, but none of them heard what was said. Trainer, who worked at a barber shop where Francis was employed, testified that Tebo came into the barber shop a short time before the killing, inquired for Francis and threatened to kill him. Tebo admitted asking Trainer if Francis had been at the shop that morning, but denied making any threat to Trainer or anyone else that he was going to kill Francis.

I have not undertaken to set out the State's evidence, and it has been necessary to set out the defense evidence more at length than usual because the sole question as we understand it is, does the evidence raise the issue of a voluntary killing on adequate cause, not whether it establishes the truth of such issue. If the issue is raised it was for the jury to decide it, not this court, nor the trial court. As was said in Lewis' case (supra) the jury found against Tebo's claim of self-defense, but they were not required to believe all he said, neither were they required to reject it all. They might have accepted part of his testimony as reasonable, and discredited part.

There seems no dispute about what occurred at the cafe the night before the killing. Francis went into the cafe, abused Tebo, invited him out to fight, then resented the result and threatened Tebo, who testified that later the same night Francis shot at him twice with a rifle, after which he was in fear of Francis. While the jury discredited Tebo's claim of self-defense, they may have believed that Tebo went to the taxi stand to report the matter to officers, and that while there Francis came to where Tebo was, immediately referred to the cafe incident and recalled the promise that he had made to meet Tebo again. If the jury did believe Tebo's story up to that point, taking into account Francis' conduct the night before, in cursing and threatening and shooting at Tebo, and believed his mind was disturbed by fear or resentment rendering it incapable of cool reflection, they had no instruction advising them what the law was nor what they should do under such circumstances. See Elsmore v. State, No. 18,803, decided April 14, 1937, not yet reported. (132, Texas Crim. Rep., 261.)

The court fell into error in not responding to appellant's complaint for the oversight in omitting to define murder without malice, including adequate cause. The judgment should be reversed and the cause remanded for a new trial. Not being able to agree with my brethren who have reached a different conclusion, I respectfully record my dissent.

ON MOTION FOR REHEARING.