DocketNumber： No. 1232.
Citation Numbers： 150 S.W. 926, 68 Tex. Crim. 17, 1912 Tex. Crim. App. LEXIS 530
Judges： Harper, Davidson
Filed Date： 2/14/1912
Status： Precedential
Modified Date： 11/15/2024
In this case appellant was indicted, charged with the murder of Knox Crowe. When tried he was convicted of manslaughter, and his punishment assessed at two years in the penitentiary.
It appears from the evidence that W.C. Crowe, Miss Crowe and deceased went from their home to Saragosa, where appellant was managing a mercantile establishment. Upon arriving near the store, W.C. Crowe and deceased got out of the hack (leaving Miss Crowe in the hack) and went into the store where appellant was waiting on a customer. They informed appellant he must marry Miss Crowe and went with him from the store to the hack. Miss Crowe was told to get out of the hack, and W.C. Crowe, her father, who was a justice of the peace, performed, or began to perform, the marriage ceremony between appellant and his daughter. Appellant, seizing an opportunity, drew a pistol from his pocket and fired at W.C. Crowe, who fell, having been wounded in the head. He then shot deceased, emptying his pistol. He then ran back to the store, seized a Winchester rifle, loaded it, returned to the front part of the store, stepped off the gallery, and seeing deceased on the gallery of Mata's store, fired at him with the rifle. Deceased then went into Mata's store, about ninety-four feet from appellant's place of business, where he shortly thereafter died from the effects of a wound received during the difficulty. The facts will be more fully discussed in passing on the questions raised in the motion for a new trial and in the bills of exception. *Page 20
In bill of exceptions No. 1 defendant complains that the court refused to permit him to prove by Dr. R.O. Braswell, of Ft. Worth, what the doctor told W.C. Crowe on the occasion of the latter's visit to Fort Worth. The bill shows that Dr. Braswell would have testified "he told W.C. Crowe that one T.E. Gibbons had sent money to Miss Crowe, and had been in Fort Worth and made arrangements for the care of Miss Crowe at the Rescue Home, and had agreed to pay $100 to have the child adopted, and that he (the doctor) thought Ed Gibbons was the father of the child. That he had seen Gibbons with his arms around Miss Crowe in one of his private offices." W.C. Crowe was not on trial; the defendant is not shown to have had any knowledge of this conversation prior to the shooting, and what the doctor may have told Mr. Crowe was not admissible. If Mr. Crowe was on trial it might have a tendency to show whether he was acting in good faith, but such conversation between the doctor and Mr. Crowe, a month before the difficulty, under the evidence in this case, could not and would not shed any light on the motives and actions of defendant on the day of the difficulty. He admits having had sexual intercourse with the daughter of W.C. Crowe, and, while he maintains it was impossible for him to have been the father of the child, yet his testimony would show he knew that W.C. Crowe was seeking to force him to marry the girl, because of a belief that he, appellant, was the father of the child, and that the doctor informed Mr. Crowe of his (the doctor's) belief, or circumstances that rendered it possible or probable that another person had also had sexual intercourse with his daughter, would not be admissible. Mr. Crowe, when on the witness stand, was asked if he had a conversation with Dr. Braswell, and admitted that he had a conversation. He was then asked if he did not tell Dr. Braswell he was going to kill appellant. He denied making such statement. Dr. Braswell was permitted to testify that Mr. Crowe did tell him in that conversation he was going to kill appellant. Mr. Crowe was asked nothing further in regard to the details of the conversation. Consequently he could not be impeached upon something he was not questioned in regard to, and it was not admissible for that purpose in the absence of Mr. Crowe being interrogated in regard thereto. Miss Crowe, or Mrs. Holmes, at the time the doctor was offered as a witness, had not been placed on the witness stand. Consequently his testimony was not admissible at that time to impeach any statement she made, and he was not offered as a witness after she had testified, but when she did testify, Mrs. Whitmore, Mrs. Murtishaw and Dolly McCorkle were permitted to testify what she had stated at this time, and if the doctor had been again offered as a witness, he would doubtless have been permitted to testify to all these matters that came within his knowledge and under his observation, and what the bill says it was expected to prove he told Mr. Crowe. Not that he told Mr. Crowe, *Page 21 but the facts themselves, it being immaterial whether or not he told Mr. Crowe. As the matter is presented there was no error in not permitting him to state what he told Mr. Crowe.
In the second bill it is complained that the court erred in limiting the argument on the facts to the jury to four and a half hours to the side, giving as a reason for so doing that the term of court was drawing near to a close. By article 705 of the Code of Criminal Procedure, it is provided that the court in felony cases shall not limit the argument to less than two addresses to each side. In this case it is not contended that the court did so limit the argument; the only contention being that the time was insufficient to properly present the case. This is a matter within the discretion of the judge trying the case, and in the absence of a showing that such discretion had been abused, or that defendant suffered some injury thereby, such matters will not be reviewed. The bill does not even disclose that appellant's counsel used the time allotted to them. Huntly v. State, 34 S.W. Rep., 923; Scott v. State, 36 S.W. Rep., 276.
In bill No. 3 appellant complains that the court had the jury to retire, while counsel for the State and defendant presented authorities and made their argument to the court on questions of law applicable to the case. The jury are the judges of the credibility of the witnesses and the weight to be given to the testimony, but under our system of procedure they receive the law from the court and it is a matter within the discretion of the court whether or not the authorities shall be presented to the court in their presence, and this discretion will not be revised on appeal unless that discretion has been abused to the prejudice of the defendant. (Jacobs v. State, 37 Tex.Crim. Rep.; Phipps v. State, 36 Tex.Crim. Rep.; Burt v. State,
In the motion for a new trial, from paragraph nine to paragraph twenty-three, it is urged: "The court erred in his failure and refusal to give to the jury defendant's requested special charge No. 1," in each paragraph naming a different number of special charge requested. In bills of exception from No. 4 to No. 19, inclusive, it is also complained that the court erred in failing to give these special charges. The bills read: "Be it remembered that upon the trial of the above entitled and numbered cause the defendant, by his counsel, before the regular charge was read to the jury, requested the court to give in charge to the jury the following special charge: (Here is copied one of the charges.) And be it further remembered that after the court had duly considered said charge the court refused to give the same to which action of the court the defendant then and there in open court excepted, and here now tenders his bill of exceptions, and asks that same be filed, approved *Page 22
and made a part of the record herein, which is accordingly done." It will be seen that neither in the bills of exception, nor in the motion for a new trial, a reason is assigned why the court erred in failing to give such charge, nor reasons given why the charge should have been given. This question has been recently before this court in the case of Ryan v. The State,
"There is a bill of exceptions reserved to the charge as an entirety, in which the only objection urged is thus stated: ``Because the same did not instruct the jury fully upon the law governing in this case under the facts proved.' The court's qualification of this bill of exceptions is thus stated: ``When the charge was read to the jury, the defendant's attorney excepted to the charge without assigning any reason.' We are not called upon to consider this exception. ``Bills of exception when too indefinite to point out distinctly the matter complained of as error will not bring such matter properly before the court for review.' Smith v. The State, 22 Texas Court Appeals, 316; Williams v. The State, id., 497. The primary object or purpose of a bill of exceptions reserved to a charge of the court is to call the attention of the trial judge to the particular matter complained of, so that he may be afforded an opportunity to correct any error he may have fallen into, to the end that the rights of the defendant may not be prejudiced. A general exception does not accomplish this. Another reason why the bill of exceptions should point out specifically the errors complained of, is to enable this court to ascertain what error was committed without having to examine other portions of the record. This is not done by a general exception. The bill must be so certain and full in its statements that the errors complained of are made to appear by the allegations of the bill itself. Willson's Crim. Stats., sec. 2368. Tested by these rules, the bill is insufficient to bring before this court any supposed errors in the charge which are calculated to injure the rights of the defendant. Smith v. The State, 22 Texas Ct. App. 316 [
In another bill defendant complains of the action of the court in admitting certain testimony. It appears that while defendant's witness, Wren, was on the stand, he was asked on cross-examination if he had not formerly lived in Wood County and had not been frequently indicted there for a number of offenses, and he answered that he had lived in Wood County and he had been indicted two or three times, but could not say how many times. That he had not been indicted as many as six or seven times. This testimony was admitted without objection from anyone. In rebuttal *Page 24 the State introduced N.J. Britton, the county attorney of Wood County, as a witness, and he testified, without objection, that Wren had been indicted in that county nine or ten times. He was then asked for what offenses he was indicted when the defendant objected on the ground that the indictment would be the best evidence. The State then asked if he had the indictments with him, which question he answered, without objection, that he had the indictments with him. The State then offered the nine indictments in evidence, to which defendant objected on the ground "that said indictments were for misdemeanors, and imported no moral turpitude, and were not the proper way to impeach a witness." The court overruled the objection and admitted the indictments in evidence. An inspection of the indictments show that they charged the defendant with violating the local option law and with gaming. The court erred in admitting the indictments in evidence. (Pollok v. The State, 101 S.W. Rep., 231, and authorities there cited.) This witness was material in one respect, in testifying that defendant went with Mr. Crowe and deceased from the store to the hack, where the marriage ceremony is said to have been performed, under duress, and if the fact of whether or not appellant was under duress at this time was an issue to be determined by the jury, this might probably present grounds for complaint, even though the fact that defendant had been indicted by the grand jury a number of times was admitted in evidence without objection. But the court instructed the jury in effect that defendant was under duress at that time and they must not consider his acts nor the shots he fired in freeing himself from such duress. The evidence (from the defendant's standpoint) would have deceased and his father come to the store of appellant and by the use of firearms compel him to accompany them to the hack where deceased's sister was holding the horses, and when they arrived at that point to compel him to, partially at least, enter into marital vows with this sister. While the ceremony was being pronounced, appellant says, Mr. Crowe undertook to turn the leaves of a book, and while he was doing this he, appellant, jerked his pistol, of small calibre, and fired three times at Mr. Crowe, who fell; that he then turned and fired three times at deceased. The evidence shows conclusively that neither of these shots were fatal, but the fatal shot was a shot from a gun of a larger bore, either a Winchester rifle or a large bore pistol, which struck deceased in the right side. Appellant, by the testimony of his witnesses, sought to prove that Mr. Crowe was the person who inflicted this wound on deceased with a 45-calibre pistol, one witness testifying that he had heard Mr. Crowe say he came near shooting deceased by mistake. The testimony of all the witnesses, appellant included, shows that when he fired these six shots he ran to the back door of his store, a distance of about two hundred feet, as shown by the map in the record. When he got in the store he *Page 25 grabbed a 30-30-Winchester rifle, and, he says, deceased came to the door of his store, when he told him not to come in there, and deceased did not do so. That he then loaded the Winchester rifle, and went out the front door and saw deceased on the gallery of Mata's store, a distance of ninety-four feet from his store. That deceased turned his head as if to look at him, when he fired at him with the Winchester rifle, but does not think he struck him, when deceased went into Mata's store. Deceased shortly died from the effects of a wound in his right side. The court instructed the jury, it being the second paragraph of the charge: "It is established by all the evidence in this case that the death of deceased, Knox Crowe, was caused, by the wound in his right side or breast, and you will consider this and no other wound as the cause of death of deceased."
The court further instructed the jury: "If you find from the evidence that someone else other than defendant fired the shot that inflicted the wound in the right breast or right side of the deceased, then you will find the defendant not guilty.
"If there is, from the evidence, reasonable doubt in your mind as to whether the defendant fired the shot that inflicted the wound in the right side or right breast of the deceased, or whether the shot that inflicted said wound was fired by some other person than the defendant, you will resolve the doubt in favor of the defendant and find him not guilty."
"The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if you have a reasonable doubt as to the defendant's guilt you will acquit him and say by your verdict not guilty."
It is thus seen that the court in his charge eliminated from the consideration of the jury all the acts of defendant and shots fired by him to effect his release from duress or improper restraint. Deceased was shown to have three wounds in his body, two of which were made with a weapon of small calibre — one in the left breast and the other in the right buttocks. The other wound was in the right side or right breast, and was made with a weapon of large calibre. The doctor who made the examination made a diagram showing the wound at place of entrance, it being a little over twice as large as the other two wounds. Taking into consideration the testimony, the charge of the court instructs the jury they could not convict defendant for the wounds made by him with the small calibre weapon in freeing himself from restraint; consequently the testimony of the witness Wren that would tend to show defendant under restraint before the firing of any shots, was not material under the charge of the court, for the court's charge, in effect, instructs the jury that he was under restraint, and could not be convicted for any acts committed in freeing himself from such restraint and the error in admitting the indictments in evidence is not of *Page 26 that nature that should work a reversal of the case, the witness' evidence being upon an immaterial matter in view of the fact that the court thus submitted the case to the jury. As to the last shot, the witness would be material for the State, for he says he did not see the first shots by defendant, but heard the shooting, saw the defendant run in his store, and saw deceased run to Mata's store, climb on the gallery and was on Mata's store gallery when defendant fired the last shot, contradicting appellant when he says deceased came to his store. Fitzpatrick v. State, 38 S.W. Rep., 806.
Defendant however, complains of that paragraph of the court's charge wherein he instructed the jury that the death of deceased was caused by the wound in the right side or right breast, saying that it was upon the weight of the testimony; that it took away from the jury the right to say which wound caused the death, claiming that there was evidence upon which the jury could have found that other wounds caused the death of deceased. This is a voluminous record, but we have carefully examined and reexamined the testimony, and the testimony of Dr. Lusk, for the State, and Dr. Wolverton, for the defendant, and other witnesses, both for the State and defendant, fix, beyond all question, and unequivocally, that the wound in the right side or breast was the immediate cause of death. There is some evidence that if he had not received this wound, that the wound in the left breast might have proven fatal in the course of time from infection, but it would take from two to six days for infection to take place, if at all, and if infection did not set up, it would not be a fatal wound. Deceased died in an hour or hour and a half from the time of the difficulty, and all the witnesses agree that the large wound in the right breast or side was the wound, and the only wound, that could have caused death in that time, consequently in taking away from the jury consideration of the wounds in the left breast and buttocks could not have been injurious to defendant, but was beneficial to him, for there was no question under the testimony that he fired the shots that made these two wounds, and the court in submitting the case solely on the wound in the right breast, and then submitting to the jury the question of whether defendant inflicted this wound, was presenting the case as favorably to defendant as the evidence justified. It has been held in a number of cases in this State, where facts are admitted to be true, or are placed beyond any doubt without contest, the court in his charge may so assume without infringing the rule inhibiting a charge upon the weight of evidence. Nelson v. The State, 35 Tex.Crim. Rep.; Holliday v. The State,
Defendant also objected to that paragraph of the court's charge, copied above, wherein he instructed the jury that "if you find from the evidence that someone else than the defendant fired," etc., they would acquit, it being alleged that said paragraph required the jury to believe that someone else fired the shot and did not give to the defendant the benefit of a reasonable doubt as to him being the person who fired the shot. If we take this paragraph alone, it might lend some color to such contention, but when we take the charge as a whole, it is not subject to this criticism. Hereinabove we have copied not only this paragraph, but two other paragraphs which shows that the court requires the jury to find beyond a reasonable doubt that defendant fired the shot that killed deceased, or they would acquit, and then applied the doctrine of reasonable doubt to the case as a whole.
The court further instructed the jury: "A reasonable doubt is an actual doubt that you are conscious of, after going over in your minds the entire case, giving consideration to all the testimony, and every part of it. If you then feel uncertain and not fully convinced that the defendant is guilty, and believe that you are acting in a reasonable manner, and if you believe that a reasonable man in any matter of like importance would hesitate to act because of such a doubt as you are conscious of having, that is a reasonable doubt of which the defendant is entitled to have the benefit." While perhaps the court was not required to define "reasonable doubt," in the absence of a request so to do, yet doing so in the language above, could not have been hurtful to defendant. This charge is a verbatim copy of a definition of reasonable doubt in the case of Holt v. United States, 31 Sup.Ct. Rep., 2, and informs the jury that defendant is entitled to have the benefit of such doubt and in effect tells them if they are uncertain and are not fully convinced of the guilt of defendant, they will acquit him.
There is no bill of exceptions in the record showing that the court gave his "regular and customary lecture to the jury," or if he did what he said at the time, and the record being in this condition, we can not consider this ground in the motion for a new trial.
In the third and fourth paragraphs of the motion for a new trial defendant complains of certain isolated sentences of the charge on manslaughter, but this part of the charge, when taken as a whole, is not subject to the criticisms. In this case the jury found the defendant guilty of manslaughter and assessed his punishment at only two years in the penitentiary and the charge of the court on *Page 28 this subject is a full and complete presentation of the law as applicable to the evidence in this case.
This disposes of all the bills of exception and grounds in the motion for a new trial, except bill No. 23, in which is raised the question that the evidence called for and required a charge on self-defense. If the court had not eliminated from the consideration of the jury the first six shots at the hack, fired by defendant, it would have been necessary and proper for the court to have instructed the jury that appellant had the right to use all necessary force and means to free himself from illegal restraint, but the court by his charge in taking from the consideration, this difficulty, or part of the difficulty, and instructing them that if they, from the evidence, did not believe beyond a reasonable doubt that defendant fired the shot which inflicted the wound in the right side or breast of deceased, they would acquit, in effect justifies the defendant in his course in freeing himself from duress. After defendant had fired these six shots, he goes into his store, secures a Winchester rifle, loads it, and voluntarily returns to a place where he knows he will likely meet deceased and his father. To put the matter in the strongest light for defendant, he says that after he fired the first six shots he broke and run to the back of the store, around the store, and into the store, "grabbed a gun in the store, a new 30-30 that belonged to the stock. As I grabbed the gun, I saw deceased start in the front door. I threw it down on him and told him to go back, and he did so. I ran up to the counter and threw some cartridges in this gun and ran to the front of the store. I thought they might be out the back way, and when I got to the front door I looked over on this side where the trouble came up, and I didn't see anybody, and as I swung around I saw this boy close to the other store, and as he threw around I shot, and jumped in the store." Thus it is seen that when deceased went away from his view, and knowing, if his testimony is true, that deceased had just been at his front door, he loads the rifle and goes to this door, when he sees deceased some ninety-four feet away near another store and fires a Winchester rifle, shooting at deceased. Self-defense is a defensive, not an offensive, act, and if one be in danger, yet gets beyond that danger, arms himself and returns to a place where he knows he must meet his adversary, is he not, by so doing, courting a renewal of hostilities, and if he does do so, can he then claim to be acting in self-defense? A case might be presented where a person, even under those circumstances would have the right to act in defense of some overt act, but that is not this case, according to defendant's own testimony. Defendant only says that deceased "swung around" without making any demonstration whatever, according to his testimony, when he shot. The State's evidence would make a case that when he emptied his pistol, he returned to his store, secured a rifle, loaded it, and came back to the door and *Page 29 immediately fired on deceased, at a time when deceased was trying to get away, and go into another store. That deceased did not go to the gallery of defendant's store, and State witness Eckleberry says he went to the store of appellant and found appellant with a Winchester, and he asked him not to go out there, but appellant went anyway. Several questions in this case, and especially the question raised in this assignment, are discussed by Judge Davidson in Fitzpatrick v. State, 38 S.W. Rep., 806-811. While deceased had a pistol on his person, not a shot was fired by him, and it was found in his holster after his death. If this shot from the Winchester is the shot that killed deceased, we do not think the evidence raises the issue that at this time defendant was acting in self-defense, and the court instructed the jury that if this is not the shot that killed deceased, they would acquit defendant, and also presents the issue as to whether defendant or some other person inflicted this wound. If defendant inflicted the wound submitted to the jury, it was done with the rifle. If defendant had killed deceased at the time he was freeing himself from restraint, a different question would be presented, but under the evidence he had shot down the senior Crowe, and shot deceased with a small calibre pistol in effecting his release or escape. He had then gone back into his store, and if he had armed himself and remained there, and the deceased had sought to attack him, or it appeared to defendant he was about to attack him, he could claim to be acting in self-defense. But after arming himself with a rifle and loading it, he does not remain in his store, nor wait to see if he will be attacked, but voluntarily goes back out on the streets, where he must know that his appearance may provoke a renewal of hostilities, and as soon as he sees deceased he fires on him.
The court tells the jury that if defendant had been illegally restrained of his liberty, and this produced anger, rage or resentment to such an extent as to render his mind incapable of cool reflection, if he shot and killed deceased, he would be guilty of no higher grade of offense than manslaughter, and of this offense the jury finds defendant guilty, and as we read this record, if the shot that killed deceased was the shot fired by defendant with a rifle after he had gone in the house and voluntarily returned to near the scene of the conflict, the verdict is supported by the evidence.
Finding no reversible error in the record, the judgment is affirmed.
Affirmed.
DAVIDSON, Presiding Judge, dissents.
Ryan v. State , 64 Tex. Crim. 628 ( 1911 )
Ford v. State , 41 Tex. Crim. 1 ( 1899 )
Jones v. State , 55 Tex. Crim. 207 ( 1909 )
Glascow v. State , 50 Tex. Crim. 635 ( 1907 )
Mercer v. State , 52 Tex. Crim. 321 ( 1907 )
Mitchell v. State , 55 Tex. Crim. 62 ( 1908 )
Burt v. State , 38 Tex. Crim. 397 ( 1897 )
Duncan v. State , 55 Tex. Crim. 168 ( 1909 )
State v. Robinson , 235 Or. 524 ( 1963 )
Davis v. State , 107 Tex. Crim. 389 ( 1925 )
Stapleton v. State , 113 Tex. Crim. 543 ( 1929 )
Marquez v. State , 1987 Tex. Crim. App. LEXIS 500 ( 1987 )
Young v. State , 1983 Tex. Crim. App. LEXIS 977 ( 1983 )
Welburn, Jr. v. State , 129 Tex. Crim. 323 ( 1935 )
Morgan v. State , 132 Tex. Crim. 406 ( 1937 )
Tenny v. Dretke , 416 F.3d 404 ( 2005 )
Widener v. State , 109 Tex. Crim. 423 ( 1928 )