Hays v. State

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 17 years.

Appellant was indicted for the offense of murder by the Grand Jury of Blanco County but, by agreement of counsel for both the State and defendant, the venue of the case was changed to Burnet County.

The only question presented for review is whether or not appellant, who did not inflict the fatal wound, comes within the definition of a principal as that term is defined by Art. 65, P. C., which provides as follows:

"All persons are principals who are guilty of acting together in the commission of an offense."

The solution of this question rests in the evidence. The record shows that on the afternoon of the day in question Nod Terry, Weston Hays and his wife, appellant and his lady friend left the Blue Bonnet Fishing Camp in Terry's automobile with the purpose of going to Johnson City; that after they passed the beer tavern where the unfortunate killing subsequently occurred and had crossed the river bridge, they had a flat tire. Appellant and his lady friend obtained a ride in a passing car, went to Johnson City, and engaged a mechanic to go out and repair the tire. Terry went to the beer tavern a short distance away while Weston Hays and his wife remained in the automobile. A short time later Henry Preece, the deceased, appeared at the place where Weston Hays and his wife were seated in the car and assaulted Weston. Some of the witnesses said that he assaulted him with his fists while others testified that he assaulted him with an automobile crank; that he also abused Mrs. Hays and ran her across the highway; that during the encounter, some person came along in a car and Mrs. Hays requested the person in the passing car to intercede. This party did ask the deceased not to strike Weston any more, that he had enough. The deceased then returned to the tavern. Some time later, appellant and his lady friend returned from Johnson City and Terry also returned to the car. They then started to drive back to Marble Falls. When they arrived at the beer tavern appellant, his lady friend, and Terry wanted to stop and dance, but Weston and his wife demurred and suggested that they continue their journey to Mable Falls. However, Terry, who owned the automobile did stop and appellant, his lady friend, and Terry went into the tavern where they danced while Weston Hays and his wife remained in the car. When appellant, his lady friend, and Terry went into the tavern, appellant passed the deceased in the building, who, according to the appellant's testimony, said to him, "where is that s__ of a b____ son of yours?" to which appellant replied, "I don't know." Thereupon, the deceased said, "Well, I will find him," to which appellant replied, "You have had two fights and there aint no use of having any trouble," and walked away. After the foregoing remarks had been passed between them, appellant danced a set with his lady friend but soon noticed that the deceased had left the tavern, whereupon he went to the North door of the tavern and saw the deceased at the car assaulting Weston; that while they were engaged in the fight, appellant went to the scene of the difficulty; that as soon as he walked up, Henry Preece, the deceased, said, "You old s__ of a b____, I will kill you too."; that the deceased then knocked appellant down twice and while he was down he took his pocket knife out of his pocket, opened it, got up and struck at the deceased twice inflicting two superficial wounds, one on the hand and one on the leg; that then the deceased abandoned his assault upon appellant and made for Weston; that when he started for Weston, he, Weston fired one shot, then the deceased went to the front of the car and another shot was fired at Henry Preece, who fell to the ground mortally wounded. Appellant further testified that when he saw them fighting at the car, he went up there because he thought Weston's life was in danger; that he did not at any time have any kind or character of an agreement or understanding with Weston to kill Henry Preece or inflict any serious bodily injury upon him before Weston shot him. At the time he went up to where they were fighting, he did not have any idea that it was going to result in a killing. After the shooting, Weston Hays surrendered his pistol to the owner of the beer tavern and they then entered Terry's car and went to Marble Falls where appellant made the remark, "I was cutting hell out of the s__ of a b____ when Weston shot him." The foregoing is a summary of the salient facts proved on the trial.

If the facts bring appellant within the definition of a principal, under the charge of the court, then the case should be affirmed, otherwise it should be reversed. Now, let us analyze the facts. It must be borne in mind that on the day in question the deceased assaulted Weston Hays twice. In each instance he was the aggressor. There is not any evidence from any source that appellant and his son had agreed to kill the deceased or inflict serious bodily injury upon him, or that they were acting together with a common purpose and intent in pursuance of a previously formed design, nor did appellant prior to or at the time that the fatal shots were fired say a word to his son, nor did appellant or his son say a word or do any act to provoke a difficulty with the deceased, nor is there any evidence from which it may reasonably be inferred that they or either of them intended to bring on a difficulty with the deceased, but on the contrary, Weston and his wife did not want to stop at the tavern knowing that the deceased was there. They were in Terry's automobile over which they had no control. It was Terry, appellant and his lady friend who wanted to stop and dance which they did; that while in the tavern it was the deceased who manifested a hostile attitude by the use of indecent and insulting language. It was after the deceased had left the tavern and had gone to the car where Weston and his wife were seated and began to assault Weston that appellant, who saw the struggle from the North door of the tavern, went to intercede in behalf of his son at which time the deceased ceased his assault upon Weston and began to assault appellant who after being knocked down twice drew his pocket knife and struck at the deceased twice, inflicting minor wounds. Whereupon, the deceased ceased his attack upon the appellant and again proceeded with the assault upon Weston at which time Weston shot him. There is no evidence to show that appellant and his son acted together in the killing either by word, act, or conduct. On the contrary, neither of them became the aggressor and there is no evidence that there was any concert of action on the part of appellant and his son. Consequently, the evidence does not bring the appellant within the category of a principal. In our opinion, the case of Mowery v. State,132 Tex. Crim. 408, by analogy, sustains the opinion here expressed. See also Walker v. State, 29 Tex. App. 621[29 Tex. Crim. 621].

Appellant also claims that since Weston, who actually did the killing, was convicted of murder without malice and was given a three-year suspended sentence, appellant could not be convicted of a graver offense and given a more severe penalty and he cites us to a number of cases where the doctrine under our former statute defining murder in the first and second degree and manslaughter was approved, but when the present murder statute was enacted, the degrees of murder were repealed and we now have no degree of murder. We can readily understand where one of two parties may be convicted of murder without malice and the other of murder with malice since one may act upon sudden passion arising from an adequate cause which would make him guilty of murder without malice while the other who did not would be guilty of murder with malice.

From what we have said it follows that judgment of the trial court should be reversed and the case remanded and it is so ordered.

Opinion approved by the Court.

ON STATE'S MOTION FOR REHEARING.