No. 3372 | Tex. App. | Oct 18, 1890
But one important issue is involved in this case, and that is the issue of self-defense. It is claimed by the defendant that he killed Means under a reasonable apprehension that Means was at the time in the act of killing him or of inflicting upon him serious bodily injury. In support of this defense it was proved that Means entertained enmity towards the defendant, and had repeatedly threatened to do him violence — had even threatened to kill him — and that these threats had been uttered from time to time for several months prior to the homicide, and reiterated just before the homicide, and that the defendant had knowledge of them at the time of the homicide. It was proved that the deceased commenced the difficulty which resulted in his death by a violent attack made upon the defendant.
In addition to the threats and the attack made upon him, the defendant proposed to read in evidence a postal card, two letters, and a telegram written by the deceased a short time previous to the homicide. These writings were not addressed or sent to the defendant, but to his sister and brother-in-law, but the defendant had knowledge of their contents before the homicide. They were offered in evidence for the purpose of showing
We are of the opinion that the testimony was admissible for the purpose for which it was sought to be used. It showed a bitter, unrelenting-animosity on the part of the deceased toward defendant's sister and her husband, and also toward the defendant, engendered because of the engagement and marriage of defendant's sister, which engagement and marriage the defendant approved, but which the deceased bitterly opposed. It was important to the defendant that the jury should be fully informed as to the true cause of the enmity entertained by the deceased against him, and of the character of that enmity. Such information would enable the-jury, in determining the issue of self-defense, to view the acts of the deceased from the defendant’s standpoint. Without this information the-jury could not view the circumstances of the homicide in the same light, they were viewed by the defendant. Without it they could not know, as-the defendant did, the settled, determined, and deadly character of tho deceased's hatred toward him, and the true cause of that hatred. This, testimony throws light, not only upon the motive actuating the deceased, in attacking the defendant, but upon the conduct of the defendant upon, that occasion, and the motive which actuated him to kill the deceased. It tends to show that he had reasonable ground to apprehend that the attack made upon him was intended by the deceased to be a deadly one. It gives character to the threats, motive, and conduct of the deceased toward the defendant, and also to the motive and conduct of the defendant. Russell v. The State, 11 Texas Ct. App., 288. We hold that the court erred in. rejecting the testimony set forth in defendant's bill of exception Ho. 1.
Over defendant’s objections the wife of deceased was permitted to testify that when deceased left home on the night of the homicide he told her that he was going to the postoffice to get his mail, and would be back in a few minutes. This testimony was irrelevant and inadmissible. It. threw no light upon the homicide. Whatever may have been the purpose-of the deceased in leaving home on that night, that purpose being unknown to the’defendant, he could in no way be affected thereby. Brumley v. The State, 21 Texas Ct. App., 222; Johnson v. The State, 22 Texas Ct. App., 206.
Upon the issue of self-defense the court, among other instructions to the jury, gave the following: “If you should find that the defendant-armed himself with a pistol and went to the place where said Means was killed, with the intent to there meet said Means and to provoke a difficulty with him with the intent to take his life or do him a serious bodily
Considered with reference to the evidence, we must hold the above quoted instruction to be erroneous. Defendant’s presence at the place where the killing occurred could not, under the circumstances, constitute provocation to the deceased. Defendant had the right to be at that place. It was a public street, and at the entrance to the house in which he did business. It was his daily habit to be at the place, going to and from his work, and these facts were known to the deceased. There was nothing wrong, nothing unusual or strange in his presence at the place on the occasion of the killing. With what reason, then, can it be claimed that his presence at the place provoked, or was calculated to provoke, the deceased to attack him? Nor did the fact that he went to the place armed constitute provocation, because deceased had no knowledge of that fact. Nor did the deceased know or have reason to believe that the defendant had gone to the place with the intention to murder or inflict upon him serious bodily injury. This is not a case in which the mere presence of the slayer at the place of the killing, armed with a deadly weapon and intending to kill or inflict serious bodily injury, should be considered as constituting "provocation, and therefore a deprivation of the right of complete self-defense. It is a case the facts of which bring it clearly within the reasoning and rule enunciated by this court in Cartwright v. The State, 14 Texas Court of Appeals, 486. In that case the precise question under discussion was before this court and was maturely considered. Reaffirming that decision, we refer to it as applicable to the facts of this case.
In instructing upon the issue of self-defense the learned trial judge omitted to tell the jury that the defendant was not bound to retreat in order to avoid the necessity of killing his assailant. Such instruction should have been given, as it was a part of the law of this case as made by the evidence. Penal Code, art. 573; Willson’s Crim. Stats., sec. 986.
Other questions presented in the record will not be determined, as they are such as will not necessarily, or even probably, arise on another trial.
Because of the errors we have discussed, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Judges all present and concurring.