57 S.W. 965 | Tex. Crim. App. | 1900
Lead Opinion
This conviction was for manslaughter, the punishment being assessed at three years confinement in the penitentiary.
The trial judge, on Monday of each week, for three successive weeks prior to appellant's trial, read the petit jury a document which may be termed, for want of a more appropriate name, a general lecture as to their duties as jurors. A short excerpt will be sufficient to indicate the nature of the document, to wit: "There is a defense for murder that is put in evidence in almost every case that is now tried, until the law-abiding citizen has become alarmed. It is the hip-pocket defense, by which the murderer seeks to justify under the law of self-defense. It has received its sanction in those cases which lay down the rule that the jury must judge the defendant's case from his own standpoint; that they must put themselves in his shoes, and look at his adversary just as he appeared to the defendant himself at the time he fired the fatal shot, *137
and if the deceased made any demonstration, such as throwing his hands behind him, which reasonably appeared to defendant that his life was in danger, or that he was in danger of serious bodily injury, and defendant then killed deceased, that he would be justified under the law of self-defense. There may be something in the abstract theory thus laid down, and there might possibly arise such a case wherein a party might be justified, although deceased was unarmed. But a person ought not to make any mistake or error in regard to the meaning of such demonstrations or movements of his adversary. In nearly every case the defendant or his friends testify that the deceased threw his hands behind him, and this bare fact seems to be enough to cause juries to rush with jubilant feet to the rescue of the murderer. * * * Now, as you jurors are the exclusive judges of the credibility of witnesses, it is for you to say that when a defendant has murdered a helpless, unarmed man, and he offers proof, by himself or his friends, that although the deceased had no weapons himself, and although he knew that the defendant was himself armed, yet he (deceased) actually threw his hands behind him as if to draw a pistol, which he did not have and never had, and advanced on the armed defendant to certain death, — it is for you to say whether or not such testimony is true or false. If I was a juror, I should, without hesitation, say that such testimony was manufactured, and I should promptly disregard it. I wish to call your attention particularly to the doctrine of reasonable doubt, which is also so often used with such powerful effect in all criminal trials. Our courts have said that reasonable doubt is that state of a case which, after a full consideration of all the evidence, leaves the jury without an abiding conviction, to a moral certainty, of the truth of the accusation against the defendant. It must not be merely speculative, imaginary, possible, or conjectural, but it must be a real doubt, arising out of the whole case. In presenting the theory of a reasonable doubt to the jury, attorneys nearly always conclude their argument with the old maxim that it is better that ninety and nine guilty men should be acquitted than that one innocent man should be convicted. Now, that may be an ancient maxim of the law books, assuming an ethical preference for turning loose many criminals rather than injuring one innocent suspect; but the larger truth, however, is that society and civilization are built upon the sacrificial bones of harmless individuals necessarily offered up for the good of the many." Defendant was not present when this lecture was read to the jury. His counsel were, however, and at each reading excepted. This charge was severely condemned in Jones v. State (Texas Criminal Appeals), 51 Southwestern Reporter, 949, and Attaway v. State, 41 Texas Criminal Reports, 395, was reversed because of its being read to the jurors in advance of their selection to try that case. It is not readily perceived why a trial court will insist on ingrafting novel errors upon charges, injurious in their nature, and violative of our criminal jurisprudence. Under our procedure, a defendant has the right to be present when the jury is charged, when the witnesses are *138
examined, when the jury is discharged, and when many other steps are taken during his trial. Bell v. State,
Exceptions were reserved to the court's action while impaneling the jury in regard to this same matter. Several jurors who were summoned upon the special venire for the trial of appellant heard this charge, and testified to its injurious effect upon their minds. It is unnecessary, however, to go into a discussion of these exceptions, because of the reversal of the judgment upon matters already discussed. Such errors will not occur upon another trial. For the reasons stated, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Dissenting Opinion
This case was reversed by my brethren, evidently, because of a charge read by the court, not in this case, but on the impanelment of petit juries for the several weeks of court, from which the special venire in this case was drawn, though the opinion also suggests that the court should have given appellant's requested instruction on communicated threats in connection with self-defense. Possibly it was intended to base the reversal on both of said grounds. I have previously stated my views in regard to a charge of this character. See Attaway v. State, 41 Tex.Crim. Rep.. Concede, however, that the charge here complained of, in its criticism of the defense of apparent danger and reasonable doubt, was a disparagement of such defenses, and an enunciation of incorrect legal principles, yet I fail to see how said charge could possibly have operated to the injury of appellant. As stated before, said charge was not read to the jury on the trial of this case, but had previously been read on the impanelment of petit juries for the several weeks of the term of court. It is true, some of the special veniremen heard the charge read; but they were all examined as to this matter, and each of them stated on oath that he would be governed in the trial of the case by the charge given by the court in the case, and, if there was any antagonism in the principles announced in the charge previously read by the judge and the one given them in the case, that they would not be governed by that, but by the charge given in the case. More than this, I have been unable to discover in this record any communicated threats. I fail to see in the circumstances attending the homicide any apparent danger. Indeed, there is no self-defense in the case. The only real defense was that it was manslaughter, because of alleged previous insulting conduct of deceased towards the wife of appellant. Aside from this, the case is presented without any extenuating circumstances. Appellant was seeking deceased for the purpose of killing him, rode up behind him, and shot him in the back. Appellant himself testified (and this is all the evidence, so far as I am advised from the record, as to *140 any demonstration) that: When he rode up, "Harshaw was on horseback, had his hand to his side, and jerked round. I killed Harshaw because he made that demonstration, and was on that road that morning. I do not know if I would have killed him if he had not made that demonstration." Again he says: "I was paying no attention. If Harshaw had a gun or a cannon, it was all the same to me. Harshaw was going along that road in front of me. I did not lope. I trotted right along. I had to overtake him." And again he says: "I did not go there for no good purpose. I expected to have a fight. I had been informed of it, and went there fixed for it. When I saw Harshaw first, he was probably 100 yards ahead of me. I was going faster than he." From other witnesses we are informed, in consonance with appellant's own testimony, that appellant on that morning was seeking deceased; that when he saw him he pursued and overtook him, and shot him in the back. According to the declarations of deceased, appellant shot before he saw him. This is the character of self-defense proved. The court gave a charge on self-defense which was correct. But appellant was not entitled, according to my view, to a charge on this subject at all; and, if the court had committed an error in the charge, it would not have been to his injury. To say, then, that some expressions of the court on some other occasion, in charging the petit juries or the grand jury, or a charge in some other case, because it may have been erroneous, as announcing incorrect legal principles, should be cause for reversing this case does not occur to me to be sound doctrine. Even an erroneous charge, given in the case, on self-defense, would not have been hurtful to appellant, because he was not entitled to a charge on that subject. According to my view, the jury gave credence to the only defense appellant had, which was manslaughter, and I believe the judgment ought to be affirmed.
