Dunne v. State

The opinion heretofore rendered is attacked upon the ground that it is erroneous in holding that the refusal of the trial judge to charge upon uncommunicated threats did not call for a reversal. Exceptions were presented complaining of the omission of such instructions from the main charge, and the following special charge was requested.

"Uncommunicated threats are always admissible to determine among other things, where that is an issue in the case, who began the difficulty — who was the aggressive party — defendant or deceased? So, in this case, evidence had been introduced before you relating to threats made by deceased, A.W. Garren, against defendant, which threats were not communicated to defendant before the killing. You will consider these threats, if any, in determining whether deceased or defendant began the difficulty resulting in the death of deceased."

It may be stated that the evidence is in conflict as to who was the aggressor in the difficulty. There was proof of both communicated and uncommunicated threats made by deceased against appellant. In support of the contention that under these circumstances a charge on uncommunicated threats should have been given we are cited to Kirklin v. State, 73 Tex.Crim. Rep.,164 S.W. 1016; Huddleston v. State, 54 Tex.Crim. Rep., 112 S.W. 64; Aycock v. State, 88 Tex.Crim. Rep., 225 S.W. 1099. When it becomes an issue as to who may have been the aggressor in a difficulty, that uncommunicated threats made by deceased are provable is not an open question. It is recognized by Wharton (10th Ed. page 1505, Sec. 757), and Underhill (2d Ed. Sec. 506), and the rule has firm adoption in our own decisions both on principle and precedent. (See Branch's Ann. P.C. page 1170, Sec. 2079.) But that is not the question with which we are dealing. We are called upon to decide whether the court shall be required to single out evidence of a particular character and charge the jury thereon. So far as our own investigation of authorities has extended, or to which we have been cited, the Kirklin case (supra) decided in 1914 is the first one announcing it to be reversible error for the court to refuse a charge upon uncommunicated threats. The following language is found in the opinion: "It is unnecessary to cite the authorities as they are quite numerous;" this statement from the eminent jurist who wrote it has caused us to make special and diligent search and our failure to discover the authorities has led us to believe that in this reference he inadvertently confused the right to introduce evidence of uncommunicated threats (for which there is abundant authority) with the question of the propriety of instructing the jury relative to such evidence. The question was again before this court in the Aycock case (supra) in 1920. The learned judge who presided at the trial of Aycock declined to instruct the jury on uncommunicated threats on the ground that same would have been a charge upon the weight of the evidence. This was adverted to in the opinion, and the same great judge who wrote in the Kirklin case again said:

"The rule is definitely settled that, when the issue is of vital importance as to who began the difficulty, the court should charge as to the uncommunicated threats of deceased. Kirklin v. State, 73 Tex.Crim. Rep., 164 S.W. 1016; Huddleston v. State, 54 Tex.Crim. Rep., 112 S.W. 64, 130 Am. St. Rep., 875; Pape v. State, 54 Tex.Crim. Rep., 113 S.W. 759; Trotter v. State, 37 Tex.Crim. Rep., 36 S.W. 278; Pitts v. State, 29 Texas App., 374, 16 S.W. 189; Levy v. State, 28 Texas App., 203, 12 S.W. 596, 19 Am. St. Rep., 826. See, also, State v. Blee, 133 Iowa 733, 111 N.W. 19."

A review of the authorities cited in the foregoing quotation reveals that the Kirklin case is the only one which supports the holding in Aycock's case. In Huddleston's and Trotter's cases the trial judge undertook to instruct the jury relative to uncommunicated threats and in each instance the charges were held erroneous as being too restrictive. The question of the refusal to charge upon the subject was not before the court. In Pape's case no question of the refusal of a charge upon the subject under discussion was raised. The point there was as to the admissibility in evidence of uncommunicated threats. Likewise, in the Pitts case, no question was presented as to the effect of the refusal of a charge upon the subject. A new trial was requested for newly discovered evidence of uncommunicated threats and it was held that under the facts of the Pitts case the refusal of the new trial upon that ground was not error. In Levy's case the question of charging upon uncommunicated threats was not raised. The case of State v. Blee,133 Iowa 733, (supra) does not sustain the announcement that the refusal to charge on uncommunicated threats would be erroneous, but held only that the court having undertaken to charge upon it the instruction given was too restrictive, this being the same question before this court in the Huddleston and Trotter cases.

The present writer has such high regard for the ability and legal wisdom of the author of the Kirklin and Aycock opinions that it is with the utmost reluctance he expresses views out of accord therewith, and only the firm conviction that to follow them upon the matter now under consideration would engraft upon our jurisprudence an innovation leading to confusion induces him to do so. There is no better established rule than that:

"It is not proper for the court to single out particular facts or specific parts of the testimony and charge thereon. To do so would be instructing on the weight of the evidence."

Under Note 125, Article 735, 2 Vol., Vernon's Crim. Statutes, are listed some fifty cases supporting this recognized rule. Why are either communicated or uncommunicated threats receivable in evidence? Broadly stated the answer is upon the issue of self-defense. Why is it necessary for the court to charge specifically upon communicated threats? Solely because the statute itself (Article 1143, P.C.) under certain circumstances makes that a ground of justification for one charged with an unlawful killing, and it is therefore necessary and proper that the jury be so instructed. In the absence of the statute evidence of communicated threats would be pertinent upon the general issue of self-defense and a charge upon the latter issue would be all that, under ordinary circumstances, would be necessary. Proof of uncommunicated threats become a fact to be considered by the jury upon the defensive issue just as any other fact in the case. It is true one of its peculiar functions is to enable the jury to solve the question as to who may have been the aggressor; but why is it necessary to solve that question? Simply and solely to reach a conclusion as to the truth or otherwise of the plea of self-defense. Then why should it be required that the trial judge single out uncommunicated threats and charge on them, any more than any other character of evidence receivable to solve the same question. A, with a gun, is seen secreted along a road which B is traveling and later B kills A near this same spot, and defends on the ground that A commenced the attack and that B killed in self-defense; proof of A's conduct would be highly important upon the issue of self-defense, but the trial court would not be called upon to instruct the jury for what specific proof of A's conduct was admitted in evidence; to do so would offend against the general rule last above stated. Threats made at the time of and during the difficulty are receivable in evidence as part of the res gestae, and may be considered by the jury in solving the issue of self-defense as well as any other issue upon which they have a bearing, yet it is not required that a charge be given relative to threats so uttered. (See Sec. 2075, p. 1168, Branch's Ann. P.C.) Where manslaughter is predicated upon passion arising from one of the causes made adequate by the statute it is the duty of the court to instruct that if such cause existed and passion was aroused thereby it would be adequate to reduce a killing to manslaughter. Why? Because the statute specifically so provides; but if the cause relied on be general conditions not specifically named in the statute it would be error for the court to instruct that such conditions would in law be adequate cause. The jury passes upon it under a general charge on manslaughter (See Sargent v. State, 35 Tex.Crim. Rep., 33 S.W. 364, and authorities annotated at top of page 1150 Branch's Ann. P.C.), just as the jury considers uncommunicated threats under a general charge upon self-defense. We think it may be stated as a sound general rule that the trial court is not required to charge upon any specific evidence unless it be introduced by the State for a particular purpose, and is likely to be appropriated by the jury improperly against the defendant on trial, which is illustrated by a charge limiting impeaching evidence in certain instances. This rule has no application in a case like the one before us. The proof of uncommunicated threats is introduced by the defendant. Where the court's charge does not restrict the purpose for which such proof is made the evidence is usable by the jury in all respects for the defendant. In no sense is it detrimental to him, and the withholding of a charge thereon appears to be more to his benefit than to his hurt. In Williams v. State,95 Tex. Crim. 354, 254 S.W. 568, a special charge somewhat peculiarly worded, but having uncommunicated threats as its subject, was held on the weight of the evidence in the absence from the main charge of anything restricting the purpose for which such evidence was admitted. Whether our holding in the original opinion in the instant case that the refusal of such requested charge was not reversible error, was or was not based upon a misconception of the facts as it related to a probable provoking of the difficulty by appellant, we think immaterial in view of the foregoing general discussion of the subject, and we conclude that nothing appears in the main charge of the court which can in any wise be construed as a limitation on the purpose for which uncommunicated threats were in evidence, and therefore no error was committed in declining to give the special charge upon that subject. The main charge given in the instant case does not even limit appellant's right to act upon threats to those which had been communicated to him, but from the wording of the instructions appellant could justify himself upon the ground of any threat made whether communicated or uncommunicated, and the requested charge would have been more restrictive than the one given, and in this respect would have been against appellant's interest.

The court charged upon self-defense based upon apparent danger from the acts or words coupled with the acts of deceased, and in connection therewith the jury were told that in determining whether accused entertained a reasonable belief that danger existed the appearance should be viewed from his standpoint alone. The charge upon threats is entirely disconnected from the general charge upon self-defense and reads as follows:

"When the defendant accused of murder seeks to justify himself on the ground of threats against his own life or serious bodily harm, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording ajustification for the offense unless it be shown that at the timeof the homicide the person killed by some act then done,manifested an intention to execute these threats so made. Now, if you believe from the evidence in this case that prior to the homicide, or at the time of the homicide, the deceased made threats against the life of the defendant, and you further believe that at the time of the killing A.W. Garren, the deceased, by some act then done manifested an intention to execute the threat so made, or if you have a reasonable doubt as to whether or not he did manifest an intention to execute the threat so made, then you will give the defendant the benefit of such doubt and acquit him."

This charge contains all the law given relating to appellant's rights under "threats." It was specifically excepted to because it did "not submit the defense based on communicated threats from the standpoint of the defendant, and limits the manifestation therein mentioned to acts only and not words coupled with acts." To correct what was thought to be a defect in the foregoing instruction appellant requested the following special charge which was refused;

"If you believe from the evidence that prior to the homicide it was communicated to the defendant that threats had been made by the deceased to kill or inflict serious bodily injury upon the defendant and that defendant believed that such communications as to threats made against him were true, whether the same were in fact or not, and at the time of the homicide, the deceased, by any acts then done or by words coupled with such acts, if any, reasonably created within the mind of defendant, as viewed by him from his standpoint at the time, an apprehension or fear that the said deceased was in the act of executing the threats so made or was about to execute the same, or the deceased by his conduct, coupled with words, if any, indicated that he was then and there about to unlawfully attack the defendant and inflict upon him death or serious bodily injury, and that defendant, so believing, shot and killed deceased, that the same would be justifiable homicide. If you should so believe or have a reasonable doubt thereof, then you will acquit the defendant."

It will be seen that both by exception and requested charge appellant's complaint was called to the attention of the court. We believe the criticism that the charge given was too restrictive is well taken. It only required the jury to believe that deceased manifested an intention to execute a prior threat; in view of all the facts in evidence the jury might not have believed any act done by deceased did manifest any such intention: But the question is not how it appeared to the jury but how did it look to appellant. The jury should have been told that if from the acts or words coupled with the acts of deceased it reasonably appeared to appellant, viewed from his standpoint, that deceased was about to carry the threats into execution appellant would be justified in acting, for it is to him necessarily the intention must appear to be manifest and not to the jury or to some other person differently situated. The question under discussion has been considered in many cases, and the charge objected to has been condemned. Williams v. State,87 Tex. Crim. 280, 221 S.W. 287; Sims v. State, 9 Texas Crim. App., 586; Gonzales v. State, 28 Texas Crim. App., 130,84 S.W. 231; Barnes v. State, 61 Tex.Crim. Rep.;133 S.W. 892; Maclin v. State, 65 Tex.Crim. Rep., 144 S.W. 951; Lundy v. State, 59 Tex.Crim. Rep., 127 S.W. 1032; Swain v. State, 48 Tex.Crim. Rep., 86 S.W. 335; Adams v. State, 47 Tex.Crim. Rep., 84 S.W. 231; Ayres v. State,62 Tex. Crim. 428, 137 S.W. 1146.

In writing upon rehearing heretofore our attention was particularly directed to appellant's contention that a charge upon "uncommunicated" threats was demanded and the criticism of the charge given upon communicated threats was disposed of without a careful examination of the authorities, and upon the ground that considering the charge in its entirety no such error appeared as would demand a reversal. Upon more mature reflection, and analysis of our former opinions we have become convinced that we were in error in this regard. The instruction relative to threats was not connected in any way with the other portions of the charge upon appellant's right to act upon apparent danger and to this respect differs from the charge in Darnell's case,58 Tex. Crim. 585, 126 S.W. 1122.

The former opinion upon rehearing overruling appellant's motion is withdrawn, and the present opinion substituted therefore.

For the error discussed the judgment of affirmance is set aside, the motion for rehearing granted, and the judgment is now reversed and the cause remanded.

Reversed and remanded.