Appellant was indicted for the murder of one J.M. Williams, in Shelby County, and filed his petition for bail before the Hon. Drury Field, Special Judge. This is an appeal from the refusal of said special judge to grant bail as prayed for.
Appellant contends that he is entitled to bail upon the proposition that he had established by proof that threats were made by the deceased against his life, which threats he had good reason to believe would be carried into execution. Such proof, if not available as justification of the homicide, would certainly extenuate it, even though consummated premeditately and deliberately. It was insisted in argument that the motive for the homicide, being the protection of his life from serious danger, could not be deemed a wicked or malicious motive, and such homicide should not be held to be of express malice, and therefore nonbailable. This question was considered to some extent in Lander v. The State, 12 Tex. 475, and it was denied that any
such effect could be given to previous threats. This conclusion has never been questioned in this State, for we do not regard the case of Howard v. The State, 23 Texas Criminal Appeals, 278, as doing so. The proposition contended for is apparently based on a misunderstanding of the term "malice" as used in law, which does not necessarily involve a vicious and wicked motive, but is applied to any willful transgression of law. Law is practical. It deals with material facts, rather than with immaterial ones. It therefore regards not so much the act of killing as the particular manner or modes of killing, which must always be alleged and proved. Whart. Crim. Ev., 738. It is from circumstances attending the killing that malice is inferred, without reference to the actual or precise motive, whether of hatred, fear, or gain, with which the act was done. In fact, in cases of homicide, motive of any kind is usually shown to throw light upon the condition of the mind at the time when the crime was consummated or determined upon; for the question in every homicide is, what was the condition of defendant's mind? was it calm and sedate, and with a formed design? and not, what particular motive led to such design? A motive to take life, however powerful, which does not render the mind incapable of cool reflection, can not reduce a deliberate homicide below murder in the first degree. Indeed, if motive is to govern in determining the degree of crime, it would make no difference how deliberately or cruelly the killing was effected, whether by lying in wait, by poison, starving, or torture, which by our code and by all law is held to be murder upon express malice; and there would be no homicide which might not be reduced to murder in the second degree, or even to excusable or justifiable homicide, and human life and safety would be at the mercy of cowardice and perjury, and the floodgates of crime thrown wide apart. Now, the object in introducing threats is to show that the threatened party acted in self-defense. But to make them available for such purpose, the code declares it must be shown at the time of the homicide that the person killed by some act then done manifested an intention to execute the threats so made. Penal Code, art. 608. When, therefore, the circumstances of the killing absolutely negative the suggestion that the deceased was immediately about to execute such threat, it is not error to exclude threats altogether. Penland's case, 19 Texas Crim. App., 365; Lynch's case, 24 Texas Crim. App., 364, 365. While the law of self-defense rests upon the law of necessity, and can not be abrogated by any law, yet it has well-defined limitations, marked out by human experience. Thus this right can not be invoked by the fears of the person defending, but the law requires that there must be a reasonable appearance of danger to call it into exercise. The belief and fear that a person designs to kill me will not prevent my killing him from being murder unless he does some act reasonably calculated to induce the belief that the threatened attack
had then commenced to be executed, and was not a mere preparation for some future act. McDade's case, 27 Texas Crim. App., 687; Penland's case, 19 Texas Crim. App., 365; Lynch's case, 24 Texas Crim. App., 364; Irwin's case, 43 Tex. 236. But in exploring all sources that may throw light on the conduct of the parties at the time of the killing, threats should ordinarily be admitted to illustrate or explain the conduct of the deceased which may have led to the homicide. An act otherwise of no special significance would, in the light of previous threats, become pregnant with danger to a reasonable mind, and justify the taking of life. But howsoever available they may be in self-defense, yet mere antecedent threats can not become a provocation sufficient to extenuate or mitigate a homicide. Johnson's case, 27 Tex. 758; Irwin's case,43 Tex. 236; Sims' case, 9 Texas Crim. App., 586-595. Being uttered before the meeting of the parties, and frequently days before, ample opportunity and time are afforded for resort to the proper tribunals to invoke the protection of the law; and such are the requirements of the law and the dictates of good citizenship. But certainly threats can never be invoked in extenuation of crime, where the killing is deliberate. The law will never concede the proposition that one may waylay his enemy with a mind incapable of cool reflection. It is true threats may create fear, but the doctrine can never be tolerated that under the influence of that fear one may, with legal sanction, become an assassin. The peace and safety of society forbid such a conclusion.
We do not wish to discuss the evidence in this record, but after a careful investigation of the same we can see no reason to reverse the ruling of the court below, and the judgment of that court is affirmed.
Affirmed.
Judges all present and concurring.