*1
SOUTHWESTERN
REPORTER.
jеction,
common-law
death,
prevail,
tion
Cunningham
estate whenever
aof
ris, to
addition
sented
they
been
ment.
interest
ment has been entered.
herited interest
death,
became
not citation to so
ed
who
failed
proclaim
to
tion
and determined
former
Having
ed and conceded fact
new
that event.
estoppel
the one
pear in the
ecute
the children of his
stance
maintain
so to
script
(Court
1.
signments contrary to rules.
sent no error.
grounds
Affirmеd.
What
Appeal
copy
Appeal
entirely
complete
objections filed,
It was a
Where
interest
thereunder
statutes,
paragraph
pointed
intended to
counsel of
not within
Now,
proposition
do, but,
Jan.
referred
requiring
ATER
it.
which had occurred
appeal.
thus been
wholly
has
and that
at
him.
his own behalf
there was also the
in their
or limitation could
does not
number
and error
than
Civil
different
many years
Gus
preceding
common
appeared,
effect
been said
his second
marriage
a
violation
out,
could
merely
assignment of error
1921.
v. ELLIS.
error
direct
bar under
Jan.
it was incumbent
since
proposition
immaterial as to
complained
objections
Appeals
the law of the case
Cunningham is the
his own
in his estate until
against
No
assert
assailing charge
an order
appear
consideration of the
occur
showed more
found,
father’s estate
of
to two
is:
grounds,
not be
26, 1921.)
<@=>742(5)
assignments tog'ether
suit
<@=>742(2)Grouping
reversible
first
Rehearing
law —and
issue
because
n
suit. As before between
answered,
disposes of the
The children
their
wife
before his
did not
had ever been serv finding
through
choosing
as a
marriage
two
made
affirming
(No. 1734.)
that certain
assailed
was
deprived
page
Texas. Amarillo.
appellate
previously
how either
and the
rules of
die. The
interests
they may
recently
operate
—
did
person
of
John
—
pleas was to
Denied
error
than
submitted to
held to
whether or
on different
Assignment
legally ap
upon them
the limita-
counsel,
complained
they
appear
—that
the issues
after
jury.
from the
death to
only
and Ann
proposi-
of their
one ob-
pressed
briefing
assign-
having
courts.
of
sui
stated,
before
as not
merits
shown
in his
recit
judg-
tran-
pros
were
have
pre-
sub-
pre-
fol-
one
the lowed
as-
ju
in-
In
is,
if
preventing
ing
was
property
tiff’s acts or
etc.
feet
ing
and
cide in
from third
offenses,
4. Assault and
committing theft, burglary, etc., and his acts
ises after
sues,
fendant’s
fendant,
3. Assault and
other than those mentioned
ticle,
there for the
glary, etc.,
Code
fendant’s
6.
referring
ed to
apply.
sonably appear
for that
in
ed
members of defendant’s
7.
5. Assault and
being there,
what was
tended to
to other means
indicated
son for
fied
fused when
rect
trespasser
mit
heard
single
plaintiff
defendant shot
Trial
Assault and
night,
Evidence
justifiable
There was no-
Where-
If
Under Pen. Code
Where
Where
when violence does not
to obtain a
rose
battery,
properly
commit crime held
plaintiff’s purpose
of a
where
but that
required.
offense
plaintiff
or covered
by propositions presented
when
preventing murder,
¡¿ece
<@=>351(2) Special
after 11 at
purpose,
and it
against
to certain
window defendant’s
11 at
was on
injury, the
theft,
plaintiff
commit
plaintiff’s
persons concerning
art.
him.
and article
were
<©=>314(5)
doing by
it
permitted to
purpose of
shooting
words
excluded
others
prevention
stealth
all other means must be resort-
such a
was
requested
he was shot
to defendant that he
appeared
battery <@=>15Shooting justi-
battery
on
night
battery
battery
view
justified
reasonably
1107, providing
paper
burglary,
defendant’s
unlawful and violent attacks
—
not such as to make it rea-
plaintiff
defendant was
defendant’s
merely
theft, burglary,
who was concealed
night
prevention
those
specific assignments.
coupled
inadmissible to show rea-
as to
and secreted himself in a
protection
approached within a
.commit
therein,
defendant
requested
1911,
conduct on defendant’s
was
reasonably appear.
with a
justified.
<©=35
1106,
—
<@=>15 Shooting
<@=>15
committing theft,
when
on
with others not cor>-
was
family
indicated that he was
hearsay.
submitted.
state
etc., on his
burglary,
What
what he had heard
justifiable.
refusing special
appeared
art.
by defendant,
amount
defendant’s
trespasser on
with acts
theft, etc.,
relative
number
—
and when asked
premises.
purpose to com-
—
person
—When
theft, burglary,
—
the conduct
injury,
made
residence
1614, specify-
that homicide
warranted
preceding
Finding
plаintiff
one of such
properly
etc.
engaged in
purpose
reason
written
theft, etc.,
to assault
was there
by plain-
to homi-
shot
of other
justified
retiring
conduct
did ndt
all but
on
resort
prem-
night
fear-
Pen.
bur-
try-
few
de-
de-
ar-
de-
re-
in-
is-
of
of
Key-Numbered
in all
and Indexes
cases
same
and KEY-NTJMBER
other
i5=>For
*2
Tex.-)
ATER v. ELLIS
223
(227 S.W.)
which,
injury,
or
issues,
not correct
this
party
and there fired
some of
defendant
then
gen-
at said
was in the ex-
and in
so
those
charge.
rights
protecting
ercise of his
his
eral
lawful
home,
family,
person
said
his
his
and
the unlawful
them
that
about to be done to
violence then
Rehearing.
On Motion for
some,
party;
or
of them
said
one
<@=»42
battery
held suffi-
Assault and
—Facts
shooting
great-
party
at
used no
said
he
appre-
question
cient
raise
degree
er
he
of violence than
believed to
hension.
necessary
protect
home,
said
his said
his
plaintiff
himself on family,
thereof,
Evidence that
secreted
members
as well
night,
premises
at
and himself,
defendant’s
after
from the unlаwful violence that he
made no
asked
he
when
but
what
then
them
believed was about to be done to
up
defendant said by
party.
rose
in such a
said
The defendant was so induced
bodily injury,
raise
sufficient to
upon
he
the
part
feared
to believe that said act
his
.was
question
had rea- necessary by
of whether defendant
party
the conduct of said
so
anof
sonable
offense
of the commission
said
his
night,
at said time and hour of the
plaintiff.
he shot
permission
without
or
consent of
shooting
this defendant.
said
That after
Appeal
Court, Lubbock Coun-
from District
yard
party
home,
in his said
said
this
Judge.
ty ;
Randolph, .Special
O.H.
defendant ascertained
that he had
this
George
plaintiff,
Ater,
George
-and that the said
Ater,
by George Ater,
A. B.
Action
party
unlawfully
Ater was the
so
on this de-
father,
friend,
Temple
against
Ellis.
next
time;
fendant’s said home
at said
plaintiff
defendant,
From
for
that,
shooting
plaintiff,
time of
said
this
appeals. Affirmed.
defendant did not know that he was
said
but believed that he was then
Fulton,
Lubbock,
appellant.
for
M.
years;
at a man of mature
that said
Lubbock,
appellee.
Bledsoe,
for
W. H.
place
occurrence took
in the
and
very dark,
when it was
and this
defendant
George Ater,
HUFF,
appellant,
C. J. The
not see what he took
to be
bulk of man
friend,
appellee,
by his father as next
sued
home,
at the window of his said
and at said
puni-
Temple Ellis,
damages actual and
for
time did not bear
ill
orwill malice towards
per-
$50,000,
tory aggregating
him,
the sum of
George
but at said time shot the said
Ater,
injuries alleged
believed,
have been received
he then
sonal
the lawful exer-
rights
protect
home,
of his
by appellant, cise
wound,
gunshot
his fam-
inflicted
from
wrongfully,
ily,
himself, against any
and
unlawful violence
willfully
maliciously.
and
home,
then about to be done
said
by general
appellee
denial and con-
answered
family, or himself.”
up
tributory negligence,
follow-
set
and
ing:
alleged
It
also
was on the
July 29, 1918, plaintiff
on the
“That
appellee unlawfully
night-
in the
family
their home in
his said
were at
said
and
without
the consent of
city;
m. and 12 M. on said
p.
that between the hours of 11 o’clock
appel-
but for the unlawful conduct of the
date, this defendant’s
entering
upon
lant
the home
daughter
house,
into
where this
minor
came
was,
he
then
told this defendant
would not have received such in-
defendant
hiding
juries.
there
a man
or
secreted
behind
substantially
that
a
and
The facts show
that at
hedge immediately
home,
their
north of
said
shooting appellant
boy
time of
was a
yard thereto;
upon receiving
years
old, weighing
and 4
about
months
information,
believing
same
said
pounds
height.
and a man in
about 118
He
yard
true, this defendant went into the
of his testified,
stand,
while on
said home and there found
took to
what
night of his
appellee to
he went
the home of
stooping near to window in
a man
defend-
himself
window,
shades of
said home
into said
as
ant’s
conducting
appellee’s
up
time;
and
defendant
himself
to cause this
all the
so
stopped
to believe that the said
an unlawful
hedge
about 20
north
first
feet
and was
then
appellee’s residence;
the north side of
attempt
to make
to kill or do
about
some
hedge directly
went from
there to the
bodily injury
defendant,
to this
or to
serious
prob-
knelt
north
house and
down for
family,
other member
defendant’s
then
some
minutes;-
ably two
that he heard some
house, was
to break and
or
about
enter
said
stepping on the sidewalk bаck
one
north of
private
night,
said
hour of
into said
residen.ce
house,
back
unlawfully
to the
burglarizing the
walked
side-
for
same,
north
met
to burn said
or to make an walk
started
Mr. Ellis’
rape
one of
daughter
young lady friend;
assault to
on some
the fe-
and her
he lived
family,
members of
said
male
in
defendant’s
then
public square
mile northwest
one
private residence,
believing
said
Lubbock,
lived
four blocks
party at
called on said
said
window
something
one-half mile
like
southeast of
at
givе
to-
account of his intentions in
square;
business
position in the
said
that said
nighttime,
night;
somewhere between ten
house that
party
stooping position;
then .arose from said
home,
to Mr.
o’clock he went
Ellis’
believing
that was the intention of
said
speak
anybody
party
but did
there.
do this defendant some serious
He turn-
Key-Numbered other cases see same
in all
<fc^For
KEY-NUMBER
Indexes
REPORTER
SOUTHWESTERN
Ater;
family,
(3)
Mr.
and went
at the hands of
El-
ed
to
after
went
into the
house;
lis,
shooting,
hedge immediately
standing
the time of thе
north
did exercise
while,
he all due
some little
care
and caution
discovering
premises
presence
knelt
*3
the
of
the
and there
Ater
his
bach north of
shooting him; (4)
down;
hedge
during
he
the time
was
Ater
that
that
upon
trying
kneeling
night-
to was
the
of Ellis
down he was
curtain;
secreting
that
then and there
look in the
under the
himself at
house
the
shot;
(5)
time he
the
he walked
was
that he
he returned to
sidewalk
was on the
again
entered
at the time the
that
back down the sidewalk and
upon
was fired
Judgmеnt
there
and was
wounded him.
was
the
of
rendered
Opal
upon
findings.
by appellee
Ellis
shot. Miss
these
accosted
night
first, second,
substantially
assignments
the
The
that on
and third
of
Ellis testified
of
friend,
Ruth error are to the effect that
the
and her
trial court
the
she
they
overruling
exceptions
town,
Hussey,
re-
in
erred
certain
the
to
and when
to
had been
crouching by petition,
a
to
effect
saw man
which are
the
that the an-
turned home
house,
allege specifically
hedge
swer
thаt she
does
or
the
and her friend
fied her father
north of the
acts
noti-
words
fense of
and
in
went into
that
de-
testified,
family,
Appellee
person,
home,
his
of the fact.
his
or his
prove
admitting
a man
in
to
was notified
the acts
after he
residence,
hedge
went or
in
north of his
he
of Ater
his
words
while
Ellis,
residence,
pleaded
of his
had been
out
back door
because there
reasonably
hedge,
to
such
to
man in the
he went
acts or words
calculated
a
producе
danger
residence,
northeast
position
from which
to Ellis.
corner
yard
[1,
point
Assignment
2]
some one inside his
3a
out the
he saw
stoop- charge objected
premises;
party
degree
this
his
to with
of cer
through
tainty
consideration,
ing
require
the win-
its
down
as will
;
appear
time he
no idea who
such as can
dow that at the
does not
ered with the other
tioned, and,
be consid
was,
party
assignments
from the fact
men
but believed
above
assignment
addition,
concealed in thе
com
had been
charge,
plains
paragraph
general
his
in front of
was then
yard,
assign
im-
proposition
or
or six
from
his
mediately
about five
feet
a
under
is
which
these
gallery;
he
that when
east
ments
issues 1 and
crouching
case,
party
of his win-
front
law of
as shown
saw this
were not within the
party by
objections
himto
and believed the
The
he called
filed.
brief does
dow
objection
objection
point
in-
some
for the
or what
was there
jury,
which
out
house,
gives
simply
page
to,
оr some
either
is referred
the
script
but
family;
transcript.
him
of his
he shot
tran
member
three
doing
An examination of the
times;
prompted
page
in so
he was not
reveals the fact that there
on that
by any
objection
paragraph
ill
malice or will towards
than one
more
simply exercising
right
objection
find
but
2. We
himself,
family,
protect
general charge,
or his home paragraph
to
from such
2 of the
'
danger
rights
as he saw threatened
to define
of the de
seeks
aрpellant.
states
The
further
premises,
protecting his
fendant in
extent
theft, murder, arson, burglary,
appel-
he
may
that when
accosted
go
preventing
substance
he
to which
jumped
feet,
and that
and that
rape
lant
or
grown man
a
nighttime.
charge appears
him to be
believed
This
the
the
bodily in-
assignment
to receive serious
charge upon
was then
jury
thereupon
based,
proposition
and that
assails issues 1
but the
entirely
grounds,
fired.
different
as
and
the evidence is
submissiоn.
that there
facts show
three shots
to warrant their
sufficient
succession,
pistol
rapid
Manifestly,
presents
the brief
fired
one,
require
be fired
a double-action
consideration
no such
of
the
are
are
as
trigger.
fact,
by simply pulling
assignment
The fourth
In
the brief
3a.
violates
appellee says
fired,
assignments
briefing.
he fired
All the
shot was
rules
Appellee
propositions
copied together,
into the air.
also stated that
and then
all;
propositions
presented
asked him
he accosted
specific assignments
that he received
as
what he was
certain
do refer to
jury
spe-
reply.
suggested.
copied,
found in
answer to
This renders
above
(1)
reasonably appeared
errors,
any, sought
That
to
in
cial issues:
consideration of
be
briefing
Counsel,
presented, quite
had entered
home
that Ater
inconvenient.
Ellis
nighttime
pur-
rules,
case,
premises
pose
fenses,
murder;
follow
should
logical
committing
some one
not.
of the named of-
or
whether
arson,
burglary,
rape,
theft,
have,
or
concluded that we
(2) that
the acts
evi
answer
consider whether
ap-
present
cause Ellis to have
Ater did
prehension
dence thereunder
cause
defense to
danger
himself,
home,
by appellant.
set
action
and terms
In the
mained silent. His conduct
then
pose
he was
murder.
ing
lee did not
shows that
called
such acts
pellant
pellee,
Pie secreted
stealth
the window of
law authorizes the owner to kill to
time as to
evidently
obtain
tified. The
(cid:127)of
appellee says
an unlawful
purpose
tainly
fense or after some
pled
Article
If the
cide. He
resolved these
dence as will
jury.
lant was there
relieve himself
appellee
pellee
be
shooting
be relieved from
would
night,
ably appeared
mit one
or
killed
apparent danger,
theft, burglary,
the
was
duct were not such
379. But it seems
been
sault to
even to
though,
assault.
Tex.)
[3-5] It
reasonably aрpear
preventing
injury
required
this was his
premises,
right
purpose
with
guilty
purpose
challenged rose
in
these acts indicate
S.W.—15
227 offenses
The
appellant was
a view
approached
statute
1105,
under the
murder, aggravated
to commit one
taking life,
engaged
of the
to
The
to state
may
Chapman
crime
must
should
acts,
justifiable
very naturally
under
in the act of
appellant was
know
would
jury,
of a
we
prevent
great
protect
to
trespass,
intent to commit such
himself
and
Penal
there,
any
jury
therein.
be true
by
appellee’s
questions
named,
support
as
etc.,
of the
for that
offenses named.
from civil
exercise due
take
think the
intent of
criminal
purpose. Appellant
feared
in
however,
liability
such circumstances
at the time he
why
the acts or
appellant
be
weight
are sustained
grounds justifying
facts be would
him with the
or his
the law will
theft, burglary, .rape,
within five or
act done
committing
on his
at the time
but made
and that he
himself from
Code,
thе offense
homicide.
place
merely
real
complain
in
the
justified,
commit one which
appellant,
up
and his acts
he was
Hargrave,
He was
appellee
in favor
purpose, the
warranted
offense,
committing
at the
named
in
purpose.
indicate
the crimes named
right
in this
pleadings set
and
while
liability.
assault,
findings
by him
part of the
by
caution
damages,
unlawful
no
there,
tx-espasser
injury.
if the
if
article
not admit
theft or
give a
home of
was shot
asked what objeсted
in order
as to make
words,
that it was
by
The
that
attempt
offenses
six feet of
of the
case,
204 S.
it reason
would
danger
testimony
trying to thing
not have
and con
think the
He was the evi
to com
prevent
purpose
prevent
offense. 919;
ATER ELLIS
o’clock.
be
but re
admits
of the
killing
If the
before
simple
appel
appel
homi
party
have
find
even
pur
only
Cer
cou
.(227 3.W.)
jus
any
ap
ap
ap
as
W.
of
up
on
or anything.
to
n
what
in which the
sufficiently
premises.
undressing in their rooms with the window
ence
the
under
Mr.
that
were
tion.
must
tion that the
the Penal
stand, such
Ann. Cas. 886. In the character of defense
dence. The trial court sustained the
Jopes,
or that one or the other of the offenses
siding
shades
their bodies to
and
named would be
think the
pleaded
that he had
dow
Co.v.
such
rant
then done
exercise due care and caution. The facts
as
before
lawfully
Civ.
S.
Civ.
vented. Slack v. State
sault,”
707;
the homicide of one who in the
acter as to
Gillespie,
exercising proper care and caution that such
ises of
case,
was his
“We are
[7] The
have,
steal,
W.
prompting
findings
witness
testimony
Ellis’
App. 694,
App.
to the
March v.
shades of Mr. Ellis’
resort
reports
properly
others
there was
Whitten
In
he had no
Huddleston,
to commit
the shades while
The
142
for no
up
with
296;
killing.
another,
p. 632,
invades
in
to the
intention.” Grant v.
but whose conduct
this case the
he went there to see for himself if
jury
pleadings
rule of law
354,
70 N. J.
Code;
also of the
U. S.
daughters
He stated his
stated his
window
thiá case
testimony
witness
as will
make.it
to all other means of
had told the witness with refer
had heard about such
Railway
heard
appellee
court was
he admits that he was
unlawful
75 W.
light
submitted to the
young
Walker,
v.
in
105 S. W.
of the
testimony
note
18,
with
persons
State,
S.
committed
was no
that
right
Ater v. Ellis
227 S.W. 222
Tex. App.1921Check TreatmentAI-generated responses must be verified and are not legal advice.