Cook v. StateCook v. State
- Reporters:
- , ,
- Before:
- Harper, Davidson
Where, upon trial of murder, the evidence raised the issue of self-defense, the court‘s failure to charge thereon was reversible error.
2.—Same—Exculpatory Statement—Charge of Court—Self-Defense.
Where, upon trial of murder, the State introduced in evidence the declarations of the defendant which embraced the issue of self-defense and to this extent was exculpatory, the court‘s failure to instruct the jury that the State was bound by such declarations, unless they were shown by the evidence to be untrue, in the absence of a charge on self-defense, was reversible error. Following Jones v. State, 29 Texas Crim. App., 20, and other cases.
3.—Same—Rule Stated—Circumstantial Evidence.
While the falsity of such declarations need not be shown by positive testimony, yet they must be shown to be false, either by direct or circumstantial evidence, and such a charge must be given when the State relies for conviction alone upon the admissions and confessions of the accused, where the same contained exculpatory matter.
4.—Same—Charge of Court—Self-Defense—Rule Stated.
Where the State did not rely solely upon his confession to show that defendant killed deceased, there being circumstantial evidence authorizing a conviction, yet where the court failed to charge on self-defense as raised by the exculpatory statement and failed to charge on such exculpatory statement, the same was reversible error.
5.—Same—Opinion of Trial Judge.
Although the trial judge may have believed that the exculpatory part of defendant‘s confession was not true, it was, nevertheless, necessary to submit the issue to the jury.
6.—Same—Evidence—Undisclosed Motive.
In the absence of any proof that defendant was aware of the fact that deceased had been shot at in February, some months before the shooting, and that for this reason he had purchased a gun which he carried on the day of the killing, such testimony was inadmissible against defendant to show the undisclosed motive of deceased in carrying the gun. Following Pratt v. State, 53 Texas Crim. Rep., 281, and other cases.
7.—Same—Insanity—Charge of Court.
Where there was no evidence that the defendant did not know right from wrong or was insane at the time of the offense, there was no error on the court‘s failure to charge on insanity.
8.—Same—Manslaughter—Charge of Court.
Where the evidence did not raise the issue of manslaughter, there was no error in the court‘s failure to charge thereon.
9.—Same—Murder—Change of Law—Degrees of Murder.
The Legislature, by taking the definition of murder in the first and murder in second degree and consolidating them into one offense, did not declare that the elements constituting those offenses, or either of them, should no longer be punishable, but merely substituted a new penalty.
Owsley & Owsley, for appellant.—On question of undisclosed motive of deceased: DeLeon v. State, 155 S. W. Rep., 247; Dowell v. State, 58 Texas Crim. Rep., 482, 126 S. W. Rep., 871.
On question of self-defense: Wilson v. State, 154 S. W. Rep., 1015; Duke v. State, 56 Texas Crim. Rep., 502, 120 S. W. Rep., 894.
On question of court‘s failure to charge on exculpatory evidence: DeLeon v. State, 155 S. W. Rep., 247; Pratt v. State, 50 Texas Crim. Rep., 227, 96 S. W. Rep., 8; Wheeler v. State, 30 S. W. Rep., 913; Jones v. State, 29 Texas Crim. App., 20.
On question of repeal of degrees of murder: Shepard v. State, 1 Texas Crim. App., 522; Hall v. State, 52 Texas Crim. Rep., 195.
C. E. Lane, Assistant Attorney-General, and Geo. H. Culp and H. R. Wilson and F. M. Bottorff, for the State.—On question of insanity: Powell v. State, 37 Texas Crim. Rep., 348.
On question of exculpatory statement: Slade v. State, 29 Texas Crim. App., 381; Trevenio v. State, 48 Texas Crim. Rep., 207.
HARPER, Judge.—Appellant was convicted of murder in the second degree, and his punishment assessed at ninety-nine years confinement in the State penitentiary, from which judgment he prosecutes this appeal.
The State proved that appellant entertained animosity towards deceased, Mr. Hope. That during the month preceding the killing appellant was seen in an adjoining pasture and near the Hope farm, sitting around with a gun; that on the day of the homicide he was talking about his wife and child leaving him, and it is apparent he blamed Mr. Hope for the separation. He left Mr. Childs’ place, going in the direction of the Hope farm, taking a gun with him; he was seen coming from the direction of and near the Hope farm just before the deceased‘s body was discovered. These may be said to be some of the circumstances pointing to appellant as the party who killed Mr. Hope, outside of his confession. Mr. Hope was shot in the right side; the shot ranged upward, and were embedded near the left nipple. There is no positive testimony that appellant fired the shot outside of his confession, but the above circumstances would tend strongly to show his guilt, although two other men are shown to have been in the wheat field not a great distance from the body. These two men did not testify on the trial of the case. However, Mr. Childs testified that he lived about a mile south of the Hope farm, and appellant worked for him that morning; that after dinner appellant left, carrying his gun, and went in the direction of the Hope farm; that some time after this he met appellant about half way between his farm and the Hope farm, and appellant said, “It‘s all over“; I said, “What is all over?” he said, “I shot him“; I says, “Did you kill him?” he said, “I don‘t know,” and I said, “Didn‘t you say anything to him?” he said, “Yes,” he said, “I
The court refused a charge presenting the issue of self-defense, and also refused a charge instructing the jury that if they believed that appellant made the statements to Cook, then the whole of the admissions or confessions are to be taken together, and the State is bound by them unless they are shown by the evidence to be untrue.
State‘s counsel insist that the court committed no error in refusing to give either or both of the special charges, and we are cited to the case of Powdrill v. State, 69 Texas Crim. Rep., 340, 155 S. W. Rep., 231, as sustaining that contention. In the Powdrill case the court gave a full and fair charge on self-defense, and having done so, it was held that the issue was sufficiently presented, as the jury could not have found that appellant did not act in self-defense, without finding that the statement made was not true. Again, the statement in the Powdrill case was held to be res gestae, and consequently the events speaking, and not a confession, and for this reason it was held that the charge on self-defense was the appropriate and proper charge, and no charge was necessary instructing it was incumbent on the State to prove the state-
The place where the bullet struck deceased; the range of the ball, and the other circumstances attendant upon the killing, would support a finding of the jury that this exculpatory part of the confession is not true, and evidently the court thought the circumstances so showing were so forcible and cogent as to relieve the court of the necessity of submitting that phase of the case to the jury. But under our law the jury are the judges of the credibility of the witnesses and the weight to be given the testimony, and as it is an undisputed fact that appellant in admitting the killing gave this explanation of his act in the same conversation and at the same time, he was entitled to have the issue thus raised, when this confession is introduced by the State as a part of its case, submitted to the jury in either one or the other modes, that is, by a charge on self-defense from apparent danger, or by a charge similar to those given in the Pharr and Jones cases, supra.
Again the court permitted the daughter of deceased to testify that her father, deceased, was shot at late one evening in February preceding this homicide in June. It is not attempted to be shown that appellant did the shooting in February. If the testimony had shown this fact, then, that appellant had attempted to kill deceased a short time prior to the fatal encounter would be admissible on the question of motive, etc. But as hereinbefore stated, it was not attempted to be shown that appellant fired the shot in February, but it was offered, as disclosed by the record, to explain why deceased had purchased and had been seen in possession of a gun, and the court instructed the jury in his main charge as follows: “The witness, Lena Hope, testified that the deceased was on a certain occasion prior to the homicide, shot at in the night time and that thereafter he procured and kept at his home or about his home, a shot gun; the testimony of his being shot at was admitted before you for the purpose of explaining the cause of the deceased procuring said shot gun, if in your opinion it does explain it, and cannot be considered by you as original criminating evidence against the defendant in this cause.” In the absence of any proof that appellant was aware of the fact that deceased had been shot at in February, and that for this reason he had purchased and had a gun, would such testi-
The court did not err in refusing to submit the issue of insanity, as there was no testimony that defendant did not know right from wrong, or that he was insane at the time of the commission of the alleged offense.
Neither was a charge on manslaughter called for under the evidence adduced on this trial. Instead of raising that issue, the evidence would exclude the idea that the killing took place under the influence of sudden passion aroused by an adequate cause. Nothing in appellant‘s confession, nor any other testimony adduced suggested any state of facts which would be adequate cause in law for sudden passion.
Many other grounds are stated in the motion, but none of them, other than as above stated, would present reversible error.
Appellant insists that as appellant was convicted of murder in the second degree, and there is now no such offense as murder in the second degree known to our law, he is entitled to have the case reversed and dismissed. To this contention we can not accede. It is true that
The Legislature by taking the definition of murder in the first and murder in the second degree and consolidating them into one offense, does not declare that the elements constituting those offenses or either of them shall no longer be punishable, but instead of doing so, specifically declares that such acts shall continue to be offenses against the law,
The judgment is reversed and the cause is remanded.
Reversed and remanded.
DAVIDSON, Judge.—I agree to reversal, though not to all the reasoning. I think correct conclusion was reached in Combs v. State, 52 Texas Crim. Rep., 613, and Pratt v. State, 53 Texas Crim. Rep., 281, in regard to confessions of defendant when used by State to connect him with the alleged offense.