30 S.W. 785 | Tex. Crim. App. | 1895
This is a conviction of murder in the first degree, with the death penalty, for the homicide of Lee Waller.
It appears from the evidence offered by the State in this case, that the deceased was a policeman in the city of Fort Worth; that on the night of the homicide, in the discharge of his duty, he arrested a woman of the town for being on the street in violation of an ordinance of the city which authorized the arrest. Defendant was with her at the time, and interfered, using some abusive epithets towards the officer. After the arrest, it appears that the officer, in company with another officer, who was present at the time, left the place, and went to the theater. In the meantime, the defendant got certain of his friends, and procured arms, all the while making threats and using abusive language with reference to the deceased and officers generally. The defendant created such a disturbance on the streets, that it appears some one went to the theater and requested the officers to come and arrest the defendant. The deceased, in company with two officers, left *391 the theater for that purpose, and as they came down the street, looking for defendant, about half way down the block from Twelfth street they noticed several negroes crossing Fourteenth street, coming north. As these negroes passed the officers, they (the officers) were fired upon by some one on Thirteenth street. The shot was fired by the defendant, and was aimed at Waller, the deceased. At the time of the firing the defendant appeared to be concealed, or squatted down. Deceased drew his pistol, and fired about the same time defendant fired his second shot. The officers then began firing, and they were fired upon by others, besides the defendant, from two different points. After the deceased fell, the defendant ran off, and made his escape. The defendant testified in his own behalf, told about the arrest of the woman, and that the officer, because he said something about it, seemed to get mad at him, and threatened to arrest him. He asked him what he had done, and he called him a son of a bitch, and told him to dry up; that the deceased then hit him a hard lick on the head with his policeman's club, which caused him to stagger and come near falling; that the deceased then drew his pistol and and tried to shoot him, but was prevented by the other policeman, Towns. The defendant denies that he induced his friends to join with him to make an assault upon the officers, or to raise a disturbance. He says: That he tried to get a pistol at Overton's saloon, but that he would not let him have it; and that he went to Snow's saloon, and got a pistol. That he got it for the purpose of protecting himself. That he then went to his own house, and was bathing his head in cold water, which was hurting him from the stroke he had received from the deceased's club. While he was there, the deceased, Frank Bryant, and Ware, two other policemen, came to his house, with pistols, looking for him. That he squatted down behind the water barrel, and heard them say, "We will kill the damn son of a bitch;" that he was frightened, and ran from there, and got in a closet on the place. That he went out of there, and jumped over his back yard fence, and went west on Fifteenth street. When he got near Thirteenth street, on his way to Curry's saloon, where he intended to hide from the officers, he saw the officers coming, with pistols in their hands. The deceased immediately shot at him. Defendant turned and ran south, and just as he was stepping on the south sidewalk of Thirteenth street, he stumbled and fell, and deceased shot at him again. That he then shot at Waller, kind of back over his shoulder, and ran on in a southeast direction to Rusk street, and made his escape. He stated, that after deceased fired his second shot at him it looked like all the officers were firing at him, and that he did not know that Horace Bell, George Davis, Will Campbell, or anybody else was along there that night when the shooting began.
Under this state of facts, the court, among other things, instructed the jury in regard to self-defense substantially as follows: That if a party be unlawfully and violently attacked, such an attack would not justify homicide if the party killing had provoked the difficulty with *392 the intent to kill his assailant, or had voluntarily engaged in a difficulty with the person killed. The doctrine of provoking the difficulty occurs in several places in the charge upon the right of self-defense. Counsel for appellant at the time excepted to the court's charging this doctrine and mutual combat, because, they say, there was no evidence tending to prove that appellant provoked the difficulty. We do not take this view of the case. The evidence clearly shows that appellant produced the occasion with a view of having the deceased killed or killing him himself. Having produced the occasion, to reinstate himself to the right of self-defense he must have abandoned the difficulty or conspiracy in good faith; a mere retreat and firing back will not be sufficient. The difficulty must have ceased, or he must have shown to his adversaries, the officers, an unequivocal intention to abandon the difficulty. Again, those who were acting with him were his agents, and must have abandoned the difficulty also, for he is responsible to the same extent as if he had done the acts committed by any one of the coconspirators engaged in the assassination; and, to reinstate himself to his right of self-defense, he must not only have abandoned the difficulty himself, in good faith unequivocally, but his coconspirators must have also done so, for he is responsible for their acts. Now, as soon as the firing commenced, his coconspirators, from different directions, began to fire upon the deceased and the officers, and continued to fire for sometime; some one of whom inflicted the wound in the shoulder of deceased. Every shot fired by a coconspirator was the act of the defendant. Appellant was responsible for their conduct, and they evidently did not abandon the difficulty. The doctrine of provoking the difficulty was called for by the theory of the State. The court gave to the jury a charge on the theory of the defense, namely, self-defense; and the charge was so shaped as that the jury could not have been confused thereby, but if they believed defendant's theory, they would give him full and untrammeled right of self-defense.
We have given this record and the questions submitted a most searching examination, but we have found no errors for which the judgment should be reversed. The judgment is accordingly affirmed.
Affirmed.
Judges all present and concurring.
