262 S.W. 491 | Tex. Crim. App. | 1924
Lead Opinion
Appellant is under conviction for the murder of John Cronea with an assessed punishment of ten years’ confinement in the penitentiary.
Appellant and deceased had been friends for several years, and appellant was a frequent visitor at deceased’s -home. Deceased and his wife lived in Beaumont. Louise Win-slow, deceased’s sister, lived with them part of the timé. On the day preceding the killing appellant came to the home of deceased, and, according to the testimony of both appellant and Louise Winslow, the drinking of intoxicating liquor was indulged in by all of them, including Mrs. Cronea. Mrs. Cronea denies that she drank, or that any intoxicating liquor was used by any of the party at the time. It-is agreed that early the next morning Mrs. Cronea complained of the loss of $17 which had been taken from the pocket of her dress during the night. Her testimony and Louise Winslow’s does not accord with that of appellant relative to this incident. The two women say that when Mrs. Cronea complained of the loss of the money appellant said he had it, returned $12, and agreed to repay the other $5; that no hard feelings or disturbance of any kind occurred with reference to the matter; that deceased was perfectly satisfied with the return of the $12 and the promise to repay the balance, and so expressed himself. Appellant’s version is< that during the preceding night something' had been said about whether he had any money; that he had told deceased he was out of funds, and might want to borrow some? that the next morning Louise Winslow was looking through his pockets for a match, pulled out the $12, and called appellant’s attention to the fact that he did have some money; appellant denied knowledge of how the money got in his pocket, and requested Louise to give it to him in order that he might return it to Mrs. Cronea; that a quarrel then ensued between deceased and his sister, deceased accusing her of having taken the money; that in the quarrel deceased struck or slapped his sister several times; that appellant remonstrated with him, whereupon deceased told appellant to keep out of the trouble, if not, deceased would shoot him; that appellant told deceased if he would quit abusing his sister he would take her away from the house; that he and Louise did leave,'and were gone probably two or three hours. While they were away, both appellant and Louise had another drink, or drinks, of whisky. .The killing occurred almost immediately after their return to deceased’s home. The evidence of the two women and that of appellant is in sharp conflict as to the facts of the shooting. According to the women, in a few minutes after appellant and Louise returned appellant was seen by Mrs, Cronea passing through the house with deceased’s pistol in his hand; that she informed her husband that Cunningham was leaving with his pistol, whereupon deceased told appellant, if he wqs going away, not to take his (deceased’s) pistol, that he might need it ;
The court submitted murder, manslaughter, and self-defense. He predicated adequate cause on deceased’s conduct towards both his* sister and appellant, thus, presenting the manslaughter issue from appellant’s standpoint. Some criticism of the charge upon manslaughter is found in the exceptions thereto, but, considered in its entirety, we do not think the objections well founded. No special charge upon the subject was requested.
Appellant predicates one exception to the charge upon the claim that it omits an instruction that appellant would haye the right to kill to protect Louise Winslow, but confines appellant’s right to act only in his own defense. If there was such omission from the charge when the exceptions were prepared, it must have been remedied when the court’s attention was called to it by the exception, for we find where the court did tell the jury in substance that, if deceased had made an attack on either his sister or appellant, which caused the latter to reasonably fear death or serious injury to himself or Louise Winslow, appellant should be acquitted. In that part of the charge relative to the presumption of law against deceased, if he was armed with a deadly weapon, the court tells the jury, if deceased was making an attack upon “appellant,” it would be presumed that he intended to kill him, and does not here include deceased’s sister, but no exception is sufficiently specific to point out to the learned trial judge that any complaint was being urged to this part of the charge. Walker v. State, 89 Tex. Cr. R. 76, 229 S. W. 527; Boaz v. State, 89 Tex. Cr. 515, 231 S. W. 790; Rodgers v. State, 93 Tex. Cr. R. 1, 245 S. W. 697; Richardson v. State, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249.
A special charge appears in the record relative to appellant’s right to act in defense of Louise Winslow, which was refused. No exception seems to l^ave been saved to this action of the court. It does not so appear from any notation on the charge itself over the court’s signature, but only a notation that it was refused. It has been repeatedly held that it must, be made to appear affirmatively that exception was reserved to the refusal of special charges before they were properly before us for review. Craven v. State, 93 Tex. Cr. R. 329, 247 S. W. 515; Brooks v. State, 93 Tex. Cr. R. 206, 247 S. W. 517; Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703.
The issues of fact were sharply drawn, and some witnesses both for the state and appellant were impeached upon material points in their testimony, but all these matters were for the jury, which they determined for the state..
Finding no errors in the record which would authorize a reversal, the judgment is affirmed.
Rehearing
On Motion for Rehearing.
That our former opinion correctly disposed of the matters therein discussed is not challenged. Appellant complains, however, because we did not consider a bill of exception relative to the rejection of evidence from the witness Miles Roberta. The bill was not overlooked. Said witness was asked by appellant if a few days before the homicide he heard “anything unusual” ovef at deceased’s home. Objection was sustained. The ruling appears to have been correct, as the question was so general in its character as not to convey any idea of what Was
The motion for rehearing is overruled.