Overcash v. State

Appellant was indicted for murder, and when tried be was convicted of murder in the second degree, and his punishment assessed at fifteen years confinement in the penitentiary.

This is a companion case of Condron v. State, 62 Tex. Crim. 485, 138 S.W. Rep., 594, and the facts are, in the main, the same. It was in evidence that deceased had a warrant commanding him to arrest A.O. Condron upon the charge of unlawfully carrying a pistol. In addition to the testimony on the former trial in this case it is shown That just a short time before The homicide appellant was seen loading firearms, and the testimony was perhaps more emphatic in showing ill will existing between appellant and the deceased sheriff. The evidence for the State would show that when appellant and Condron saw deceased and deputy sheriff Nichols coming, they retired into the feed store and armed themselves, one with a shotgun and the other with a pistol, and the testimony would prove that appellant killed deceased, shooting him with the shotgun. There is a sharp conflict in the testimony as to who fired the first shot, and the incidents attendant upon the opening of hostilities. The State's evidence would make it clear that when appellant and Condron saw the officers coming Condron remarks, "Yonder comes the God damn sons of bitches now," when they armed themselves. That when Sheriff Spurlock and his deputy approached the feed store, Sheriff Spurlock said to Mr. Condron: "Albert, I have a writ for your arrest," and Condron replied, "By God, get away from here with it." When Condron made that remark he just motioned his left hand, that way (demonstrating). When Overcash said, ``Don't come another damn step,' Nichols says be and Spurlock did not do anything as they had stopped at that time. Immediately after Condron had said, ``Take the damned thing and get away from here,' then Overcash started to rise up out of his chair, and when he got something about half straight he shot with a shotgun." A number of witnesses for the State say that the shotgun fired first, while the witnesses for appellant are equally as positive and say that the pistol was first fired by Sheriff Spurlock, and the appellant's testimony would indicate the officers did not make known their mission.

The grounds in the motion for new trial assail almost each and every paragraph of the charge of the court. No special charges were requested, and no exceptions reserved to the introduction of testimony.

1. The charge on murder in the second degree is assailed on the ground that it denies to defendant the presumption of innocence and the reasonable doubt on the testimony, in that the jury are instructed to convict defendant of murder in the second degree unless they believe that the evidence tends to reduce the offense to manslaughter. The paragraph criticised reads:

"If you believe from the evidence in this case beyond a reasonable doubt that in Throckmorton County, Texas, on or about the first day of October, A.D. 1910, W.J. Overcash, did unlawfully kill J.G. Spurlock by shooting him with a gun, but should not believe from the evidence beyond a reasonable doubt, that the killing was done with express malice (as hereinbefore defined) and unless you believe that the evidence under the law as given You in this charge tends to reduce the offense to manslaughter, or to justify, mitigate or excuse the defendant's act then from such unlawful and intentional killing, the law would imply malice, and the killing would be upon implied malice, and would be murder in the second degree, and if you so find beyond a reasonable doubt you will convict the defendant of murder of the second degree and assess his punishment at confinement in the penitentiary for any number of years you may agree upon, provided it be for not less than five."

This paragraph is a virtual copy of the charge on murder in the second degree approved by this court in Miller v. State,32 Tex. Crim. 319. It correctly defines implied malice as applicable to the evidence and in the remaining portions of the charge tells the jury, "if they so find beyond a reasonable doubt" defendant would be guilty of murder in the second degree. We have carefully read the authorities among them Smith v. State, 9 Texas Crim. App., 150, and other cases in that volume cited by appellant, and they do not sustain his contention. In the case of Rest v. State, 58 Tex.Crim. Rep., this court laid down a form and recommended its use, and in it used almost the exact language criticised in this charge. See also Barton v. State,53 Tex. Crim. 445; McGrath v. State, 35 Tex. Crim. 424; Carson v. State, 57 Tex.Crim. Rep.; Smith v. State, 45 Tex.Crim. Rep.; Pratt v. State, 59 Tex. Crim. 167, 127 S.W. Rep., 828; Douglass v. State, 8 Texas Crim. App., 520; Thomas v. State, 45 Tex.Crim. Rep.; Clark v. State, 56 Tex.Crim. Rep., 120 S.W. Rep., 179; Waters v. State,54 Tex. Crim. 322, 114 S.W. Rep., 628.

2. The court in his charge on manslaughter correctly defined that offense, and instructed the jury that if they believed beyond a reasonable doubt that the killing took place under such circumstances, (and not in his lawful self-defense) they would convict him of manslaughter. The criticism is again made that this shifts the burden to defendant to show that the killing was in self-defense. The court gave a full and complete charge on self-defense as applicable to the facts, and when we read the charge as a whole it is not subject to this criticism. This form of charge has been so frequently approved we hardly deem it necessary to cite the authorities, but see Clark v. State,56 Tex. Crim. 293, 120 S.W. Rep., 179, and authorities above cited. These decisions also apply to the third, fourth, fifth and sixth grounds of appellant's motion for a new trial, and these paragraphs of the charge do not place the burden of proof upon appellant, nor deny him of any of his rights. When we read the charge as a whole it places The entire burden upon the State to prove defendant guilty of any offense, and correctly presents manslaughter as a defense to the charge of murder, as well as the right to be acquitted if be acted in defense of himself from what it reasonably appeared to him to be danger threatening his life or some serious bodily injury. As applicable to many of the questions presented in the first six assignments we would call attention to the fact that the court charged the jury: "The burden rests upon the State to establish the guilt of the defendant by legal evidence beyond a reasonable doubt; and if after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit him; but if the evidence satisfies your minds beyond a reasonable doubt, of the guilt of the defendant as charged in the indictment, then you will convict him and ascertain from the evidence, under the charge of the court, the grade or degree of the offense under the indictment, of which he is guilty, and assess his punishment therefor accordingly.

"You are further instructed that the reasonable doubt also applies between The different offenses comprised in the in indictment; so if you find the defendant guilty, and have a reasonable doubt under the evidence as to what offense he has been guilty of, if any, you will resolve such doubt in favor of the defendant, and find him guilty of the lesser and lower offense as between such offenses as you may be in doubt concerning.

"The defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt of any offense comprised in the indictment, you will acquit the defendant."

3. In the seventh ground of the motion for new trial it is insisted That the court erred in the following paragraph of his charge: "If you believe from the evidence under the foregoing charges of the court upon the law of self-defense, that the defendant, or Condron, was justified in firing the shot that killed the deceased Spurlock, if any, then you are instructed that the subsequent shots fired by the defendant, if any, are immaterial, and that the defendant had the right to continue to fire so long as danger, real or apparent, considered from the defendant's standpoint, continued to exist." Under the evidence in this case this charge was peculiarly applicable, and it would perhaps have been error not to have given it. The evidence would show that the fatal shot was the first one fired by appellant, and it further appearing That additional shots were fired while deceased was apparently retreating, if this charge had not been given, appellant perhaps could have complained that the subsequent shots might have had weight with the jury in making up their verdict. (Branch's Crim. Law, section 452.) All the facts and circumstances which are claimed or would have justified appellant are testified to as occurring prior to the first shot by him, and this charge is as favorable as be could have requested. The motion for a new trial as a whole is a criticism of the different paragraphs of the charge of the court insisting that in each of them the burden of proof is shifted; that defendant is denied the presumption of innocence and of reasonable doubt as to the different issues presented. We do not deem it necessary to fake up and discuss each of such assignments, for it would be but a repetition, and we do not think when the charge is read as a whole such criticisms have any merit. To fake one isolated sentence, such construction might be given to that sentence, but take the connection in which such sentence is given, and the charge in full, it does not appear that appellant has been denied the reasonable doubt as to his innocence, nor as between the degrees of the offense. The charge is a virtual copy of the charge in the case of Miller v. State, 32 Tex.Crim. Rep., and which charge is copied in that volume of the reports, and which was pronounced by Judge Hurt as an admirable application of the law in this character of case.

We are cited to the case of Owen v. State, 58 Tex. Crim. 261, 125 S.W. Rep., 406, and other cases. But the facts in this case do not bring this case within the rule there announced. In this case it is shown that appellant and Condron knew that deceased was sheriff of the county; in fact, Condron had made the race against him. It was further shown that appellant and Condron knew the object of the visit of deceased and his deputy, for in addition to Nichols testifying that the first words that passed was the officer telling them be had a warrant for the arrest of Condron, it was shown by Devall that just prior to the officers coming down to the feed store when he told appellant and Condron that "it looks like the officers are getting busy up town," Condron replied, in the presence of appellant: "``Well, there is just one thing sure, by God, they can't talk to me this evening, they can talk to me Monday morning, but they can't talk to me this evenning; me and Spurlock run for sheriff here one time and be beat me, and he may be a better man one way, but by God be ain't no other way.' Condron went on and said, ``As far as that God damned long legged Nichols, he can't talk to me at all.'" The witness further testified that just after making this remark Condron looked toward the courthouse and said: "There comes the God damned sons of bitches now," when both be and appellant got up and went in the feed store, where it is shown There was a shotgun and pistol. This witness further says that The first report he beard right after this was a shotgun, and appellant is shown to be the man who had a shotgun on that day. While there is some conflict as to the character of gun That was first fired, there can be no contention made under the evidence in this case, but what the conversation detailed by Devall took place, or that the remarks were made were as herein copied. Thus it is shown that appellant and Condron knew that deceased was an officer, and were aware of his mission in coming to the feed store, therefore, the cases cited by appellant are not in point. It is true this information would not deprive them of the right to defend themselves if the officers by their acts or conduct led appellant to believe that his life was in danger, but every theory of defense as made by the testimony was fairly and fully presented in the charge of the court.

Paragraph nineteen did not limit appellant's rights to the grounds therein stated, but this with the other paragraphs presented every phase of the law as applicable to his defense, and paragraph nineteen, when read in connection with paragraph thirty-two, where nineteen is applied, presents the question both from the standpoint of actual and apparent danger. In other paragraphs the court charged the jury:

"If you believe from the evidence that the defendant, W.J. Overcash, did kill the deceased at the time, place and in the manner charged in this indictment, but should further believe from the evidence that at the time W.J. Overcash fired with a shotgun, the first shot fired by him, if you believe be fired any shot, that the sheriff or his deputy were attempting to use upon him or A.O. Condron, a deadly weapon, or by some act done by said Spurlock or Nichols at the time, reasonably indicated to the defendant and created in the mind of the defendant, a reasonable expectation or fear, that they were or either of them was, about to make an unlawful attack upon the defendant, or upon A.O. Condron, with a deadly weapon calculated to produce death or serious bodily injury, then it would be presumed from such acts that they intended to make use of such weapon to kill the defendant, or said Condron, or to inflict serious bodily injury upon him, or them, and you will in such case, if you so believe, acquit the defendant as having acted in self-defense, or in defense of another.

"If the acts of Spurlock or Nichols were such as to justify the defendant in killing Spurlock, under the law of self-defense, as given you in charge, then neither the defendant nor Condron under the law were required to retreat in order to avoid the necessity of killing the deceased.

"If you believe from the evidence that the deceased Spurlock and L.W. Nichols when they appeared in sight of the defendant before the door of his grain store, by some act done by them or either of them, indicated a present purpose and an immediate intention to use upon the defendant or O.A. Condron a weapon or weapons which might probably cause death or serious bodily injury to either the defendant or O.A. Condron, or if the acts of said Spurlock or Nichols, either when taken alone or in connection with all the other facts and circumstances in evidence, reasonably so appeared to the defendant at the time, from his standpoint, and said acts of the deceased or Nichols at the time were reasonably calculated to create in the mind of the defendant, and did create in his mind, the reasonable expectation or fear of death, or serious bodily injury to him or Condron, and if you find then and there, the defendant, moved by such reasonable expectation or fear (if be was so moved) of death or serious bodily injury, killed the said Spurlock, then the killing was under the law justified as done in his lawful self-defense, or in defense of another, and you will acquit him, if you so believe or have a reasonable doubt thereof, even though the danger was not actual but apparently so; provided the danger reasonably appeared to the defendant, under all the facts and circumstances at The time, to be real or actual, viewed from the defendant's standpoint."

After carefully reviewing each assignment of error, and reading the charge, we are of the opinion that the trial judge very aptly and correctly applied the law to the evidence in this case, and there is no error which would call for a reversal of the case. Even if there were some verbal inaccuracies, yet the evidence in this case would show that appellant was guilty of murder in the second degree or acted in his necessary self-defense, and the court fairly submitted that issue.

The judgment is affirmed.

Affirmed.

ON REHEARING. June 19, 1912.