Shine v. State

This case has given us trouble both upon original submission and upon motion for rehearing. We restate the testimony as a basis for our further observations. The parties interested were all negroes. A musical entertainment was in progress at Smith Johnson's home. Gatlin, Otis Shankle, Son Douglass and appellant were all there. Gatlin and Shankle left together. Shankle details what occurred as follows: That as they reached the gate Gatlin fired five shots from his pistol and reloaded it after which the two of them walked on in the direction of the church; that they were overtaken by appellant and Douglass; that appellant made some inquiry as to who had fired the shots; that witness said nothing; Gatlin said he did not know, but they had seen some other fellows turn up the road; that appellant and Douglass both pulled their pistols and appellant said, "We will search you first and see if you are the fellows;" that appellant held his pistol on witness and Douglass covered Gatlin; that witness put up his hands; that Gatlin did not but put his hand on his pistol and began slowly to move down the hill; that Douglass told him not to draw his pistol and to stop, that if he did not he would shoot; that Douglass then commenced shooting at Gatlin and Gatlin returned the fire; that appellant also was firing at Gatlin; that a number of shots were fired but witness could not tell how many were fired by any of the parties; that Gatlin was retreating down the hill, Douglass following and both shooting; that they were about seven feet apart; that appellant shot more than once; that Douglass and Gatlin had both fired several shots before appellant fired at all. The evidence shows that appellant was a large negro and Douglass a much smaller man. The witness Fowler did not know the parties but testified that he saw two persons, both of whom had pistols, one being a tall man and the other a smaller one when they accosted Shankle and Gatlin; that the smaller man asked Shankle and Gatlin if they were the ones who had done the shooting to which one of them replied, "No;" that the smaller man said "Let's hold them up and see;" that Gatlin walked away and the man with him threw his hands up; that the smaller man then shot at Gatlin; that he saw Gatlin get his pistol but did not know whether he shot; that the big man shot also; that after several shots were fired the large man ran away and some shots were fired after he left; that Gatlin did not draw his gun until the small man shot at him.

Appellant proved by many of the State's witnesses his good reputation as a law-abiding citizen. He testified that he and Douglass were going to the Christmas tree at the church; that they heard the shooting near Johnson's place and when they overtook Gatlin and Shankle, Douglass asked if they were the ones who had done the shooting and that Gatlin replied, "What in the hell is it to you?" and immediately jerked out his pistol; that Douglass also drew his pistol; that he did not know which one got their pistol out first, but that they commenced firing about the same time; that after several shots had been exchanged between Gatlin and Douglass a shot struck appellant in the coat sleeve whereupon he drew his pistol and fired one shot and then ran off and hid in the brush; that he was frightened and excited and was trying to defend himself when he fired and did not know whether or not he fired towards Gatlin. Appellant denies there had been any demand for Gatlin and Shankle to throw up their hands or that anything had been said about searching them. According to appellant, neither he nor Douglass had their pistols out at the time the inquiry was made as to who had done the shooting near Johnson's place. The evidence showed that appellant had a shot through his coat sleeve, and Douglass was shot through the arm.

The case was submitted to the jury independent of Son Douglass' connection with the transaction, no mention being made of appellant's rights or otherwise, depending on whether he acted with Douglass. The issue of principals was in no way submitted. The charge required the jury to believe that appellant fired the shot that killed Gatlin before a conviction could be had. Douglass and appellant had pistols identical in make and caliber and the wounds found on Gatlin's body threw no light on who fired the shots that struck him. The evidence leads more strongly to the belief that Douglass actually fired the fatal shot. Gatlin was backing down the hill firing as he went; Douglass was advancing and firing at Gatlin; they were only about seven feet apart. Douglass believed he had killed Gatlin. He said he was sure one shot from his pistol had struck Gatlin about the shoulders and that he was too close to miss. While on his way to the doctor to have his arm dressed Douglass learned for the first time that Gatlin was dead. Douglass immediately ran away and was still a fugitive from justice when this case was tried. Appellant's version of the matter makes it even more questionable whether the shot from his pistol inflicted the wound.

Written exceptions were duly filed to the charge because it omitted any instruction on the issue of assault with intent to murder and aggravated assault. A special charge upon the latter issue was requested, as follows:

"If you believe that the defendant shot at the deceased, but missed him, and that at the time he shot at him he was laboring under such degree of terror or excitement as to render his mind incapable of cool reflection, aroused by the exchange of shots of others in his presence, and that such facts were sufficient to produce such excitement or terror in the mind of an ordinary person, viewed in the light of all the facts and circumstances, then you will find the defendant guilty of no higher grade of offense than aggravated assault, and if, upon this point, you have a reasonable doubt, you will acquit the defendant, and say by your verdict, 'Not Guilty' ".

The latter portion of this charge renders it inappropriate, but the specific exceptions to the charge for the omissions mentioned were sufficient to call the court's attention thereto, and the requested charge emphasized the matter. Bearing in mind that the case went to the jury without any charge on principals whatever, but apparently upon the theory that appellant was an actor independent of Douglass, we have concluded upon more mature consideration that under the evidence and the manner in which the case was submitted that the issues of assault to murder and aggravated assault should also have gone to the jury. Leaving Douglass out of the case, thus eliminating the questions as to whether he killed Gatlin and whether appellant was acting with him, then it would be the law that if appellant fired at Gatlin, but did not hit him, he would be guilty of assault with intent to murder or of aggravated assault, depending on his intent and the state of his mind at the time, provided he was not acting in self-defense.

The following special charge was requested and refused.

"I instruct you that if you shall believe from the evidence, beyond a reasonable doubt, that the defendant shot and killed the deceased, yet if you shall further believe that at the time he did so he believed or it appeared to him that his companion, Son Douglass, was in danger of death or serious bodily injury on account of an attack then being made or about to be made by the deceased or his companion, if any, that you will acquit him; or if upon this point you have a reasonable doubt you will acquit him."

Appellant testified that at the time he fired he was acting in his own self-defense and this issue was submitted, but if from all the evidence the issue as to the defense of Son Douglass was raised it should also have been submitted. (See Steen v. State, 88 Tex.Crim. Rep., 225 S.W. 529; and authorities cited in that opinion; also Ward v. State, 96 Tex.Crim. Rep., ___ S.W. ___; Thompson v. State, 96 Tex.Crim. Rep., ___ S.W. ___) In our analysis of the facts we have been unable to disassociate the acts of appellant from those of Douglass. This same trouble must have confronted the jury. If Douglass killed Gatlin not in self-defense, and appellant acted with him as a principal, he would be guilty of some grade of homicide regardless of whether his shot struck Gatlin. But what was appellant's rights if Douglass was acting in self-defense. In determining whether the special charge last above quoted should have been given it is necessary to look at the case from the defensive evidence. Appellant says that neither he nor Douglass had their pistols drawn when Douglass made an inquiry about who had done the shooting near Johnson's house, to which inquiry Gatlin replied, "What in the hell is it to you?" and immediately commenced to draw his pistol. If this be true, Douglass and appellant being together, either had a right to meet the offensive act of Gatlin by drawing his own gun in self-defense. If Gatlin and Douglass commenced to fire at each other, Douglass acting on the defensive, appellant would have the same right to defend Douglass as Douglass himself would have. Upon a more careful analysis of the testimony we are led to believe this issue was in the case. There was an entire omission from the charge of any reference to this subject. No specific exception because of the omission was presented, but the special charge requested called the court's attention to the omission. (See Boaz v. State, 89 Tex.Crim. Rep.,231 S.W. 790; Parker v. State, No. 7255 not yet officially reported.

For the reasons given the rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.

Reversed and remanded.