*1 Beports. [June, Criminal alive.”' me, not have remained killed I would scared—-if he should have to whether or in There have been conflict the testimony seems to effect that he did is the the knife. of evidence deceased had a Some this. did not see it. Others a saw him get have knife and witnesses the knife in the evening preceding had no Others testified deceased his person. homicide found no knife about and they not raise the issue of pro- We are does testimony of that this opinion that of the the some witnesses difficulty. Usually language the voking harlot,” a would defendant, the "son of that deceased was impute beginning at the a and had it been used considered provocation, a treated as have been and the it would inducing cause difficulty n But as cause could he grounded. which provoking difficulty he the occasion stated, must provoking precede not in wrong is the about the Where the accused bringing difficulty. lan- he uses such the originally, during hut the progress Provoking not he guage, difficulty. would considered as proYoking ac- stated, that the difficulty, as before is based upon proposition conduct, cused act such words does some some or uses perform view. would occasion or that provoke difficulty, the de- If the deceased its provoked progress the difficulty during had it fendant does the difficulty that would produced something a difficulty been used difficulty, prior and, conclusion, arise, hut facts we think do not justify therefore, jury, issue in error in submitting court was self-defense, thus curtailing appellant’s right heretofore, were in error in affirming judgment we Believing is set granted, the motion for of affirmance judgment rehearing aside, the cause remanded. and remanded.
Reversed Judge. PRENDERGAST, opinion holding The original correct, and difficulty was raised undoubtedly the motion for overruled. should he I dissent from this rehearing opinion otherwise. holding
Wilbur Flewellen v. The October
No. 4455. 1917. Decided Rehearing June 1918. denied 1.—Murder—Evidence—Conversation—Telephone—Res Gestae. sc con- admitting Upon there was no error evidence trial of murder telephone by his comnanion two certain over defendant versation im- and who killing, were at the time of who were with deceased women homicide, companion place near portuned to defendant and meet companion women with imme- defendant’s of these conversation one nor the after diately homicide. y. Flewellext The State. 1918.1 —Same—Evidence—Fabricating Testimony. admitting murder was no error Upon trial evidence de- there homicide, who of the women and acts with fendant’s declarations occurred, try- to show the defendant after the same and which tended testimony. ing to induce said to fabricate women *2 Age Deceased. 3. of —Same—Evidence—Size and murder, testimony that de Upon trial for where defendant introduced the heavy man, on cross-examination very no error ceased was of was kind there years age, that twenty-one of show that deceased about nineteen or Following Treadway age. of thirty-eight years defendant was a man of about State, Rep., v. 65 Crim. 208. Texas Reputation—Bill Exceptions. 4.—Same—Evidence—General of exceptions way hill with reference Where the of in no what showed occurred interrogating reputation, there was no general defendant’s the witnesses State, material Crim. Following Huggins nor error. v. 60 Texas reversible Rep., 214, and other cases. —Same—Evidence—Self-serving 5. Declaration. Upon excluding self-serving trial error in declara- of murder no there defendant, shot tion of deceased fired the de- the effect at before the long fendant declaration occurred which after the homicide. :—Same—Evidence—Presumption. 6. Upon excluding testimony trial of murder error with refer there was no in homicide, taking no
ence to offense who 76 Texas five months in defendant’s some the conduct before at what about the woman he was infatuated was said with whom State, difficulty. Following v. of the Maddox afterwards the cause Rep., Crim. 217. —Same—Evidence—Impeaching 7. Witness—Rule Stated. permissible impeach rule is uniform is The in this State it veracity chastity for showing reputation witness truth that his or 33, State, good. Following Stayton Rep., is not v. 32 Texas Crim. and other cases. —Same—Self-defense—Charge 8. of Court. Where, murder, upon trial of the claimed the defendant self-defense separate complete charge court in a the on self-defense submitted law therewith, accordance error. there no reversible " —Same—Provoking Difficulty—Charge 9. of Court. Where, murder, provoking the of issue trial of the evidence raised submitting defendant, no difficulty on there was error part the of the the Following and, also, proposition. the charge a Giesecke v. the converse of thereon on State, raising for facts the Rep., opinion 531. See close very to a difficulty, issue narrows down issue in which the of the Morrow, dissenting. Judge, question. Difficulty—Rule —Same—Provoking Stated. 10. taking necessity brings of about wrongful the acts If a own person say killed, such he can not being himself prevent of another to life im malice, will he implied, self-defense, express necessary in his was puted. 667, cases. and other State, App., Crim. 24 Texas Following Thumm v. —Same—Malice—Charge Court. of defining a- proper murder, submitted the court Where, of Upon trial Witty Following error. reversible aforethought, there was malice and malice eases. 474, other State, Rep., Crim. v. 75 Texas Bepokts. Texas
570 83 Criminal [June, 12.—Same—Charge Court—Provoking Difficulty—Rule Stated. case, presented Wherever issue fact against whether for or during trial, party, duty either it of the court to submit law to issue, being raising there evidence in the ease instant the issue defendant, part provoking court duty jury; to submit being issue to issue of self-defense State, Following Rep., Sorrel case. 74 Crim: cases. Texas Morrow, Judge, dissenting.
Appeal from the Criminal District of Williamson. Tried Court be- low Hon. Calhoun. George murder; from a penalty, imprisonment conviction
Appeal life. penitentiary states opinion the case.
Wilcox, Fisher, Woodward, Metcalf, Graves A. N. P. & S. and W. W. Hair, for On the appellant. Wil difficulty: State, son v. id., 151; 81 S. W. Smith Roberts v. id., 221; 100 S. W. Burney *3 381; 589, Rep., Lockhart 111 S. W. Rep., 189 S. W. Kilpatrick Hendricks, General,
E. Assistant and Sam Attorney B. D. Snodgrass, for the State. Judge. PRENDERGAST, About 10 o’clock in the night May ran down shot and killed Boy McKinley contended,
streets of Temple. The State and the proof was amply to show, sufficient that Leon Wilson was a principal with appellant in Appellant was convicted of murder with his killing. punishment assessed life imprisonment.
One trial had in Bell which resulted in a County, mistrial—a Later hung jury. the district motion, on his own judge ample order, grounds stated the venue to the properly changed Criminal District Court of Williamson County, where trial occurred. The of venue change P., authorized under the clearly statute C. art. (C. and decisions thereunder. The trial 626), court committed no error on this as contended point by appellant. claimed to
Appellant have been sexually intimate with a married woman, Mrs. Ileen from time Fehrenkamp time, time, or most of the for three time years prior he killed deceased. The day he went to killed him Waco to see said Wilson. He tried to said get woman to him. refused. she, with She At the time go sister, with her Murrell, then Susie later Haney, lived with their together parents While Temple. he and Wilson together were Waco they wanted women to to Waco and meet them. In said two come effect they agreed Wilson them for that in the call purpose. put phone Susie her he wanted to talk to answered. Wilson told Ileen. Ileen refused talk. he talked and told her Thereupon Susie that he and ap- The State. Flewelt-eh 1918.'] refused. They for said to Waco purpose. to come wanted them pellant and when did this talking, when with Wilson present Appellant to the called appellant them he to meet women failed to induce the urging Susie substance the conversation continued phone, who They had done. Wilson to them at Waco to come the two women witness, Mur- Susie to said objected solicitation. Appellant refused his Wilson on this had with she conversation rell, to the phone testifying under the Practically, admissible. occasion. Her had carried if case, circumstances in this it was same himself. on all the Susie conversation with phone deceased, and Susie with women, Ileen with On said said two night at- later, in one Murrell, company, she married three days whom Boy returning The two so couples tended a rink in Temple. skating the women. Appellant home of within about a block of the gotten to> from Waco went Wilson, night each armed with a pistol, escorts said dis- in a with their Temple and found these women escorts, women, their were walking tance from their home. The hur- saw them he on the sidewalk home. As soon as appellant going out they recognized automobile. As soon as riedly "got women their and Wilson followed escorts ran from him. Appellant them with their them said to while pistols. Appellant, chasing “Bun, “Bun, said, you son-of~a-bitch.” Another witness said he sons bitches.” shot at Wilson Wilson both at least times, Ap- twice and at least five deceased. killing pellant Ileen, her; continued after Wilson continued caught after Susie and her. the court Over caught appellant’s objection per- Susie, mitted after the killing, what occurred telling immediately tell time. what was Wilson to her him at the All and she to admissible, testimony by res clearly gestae as was held the trial judge.
The court committed no error to Mrs. Fehrenkamp in- permitting that testify while her to Belton him that forcibly night taking that several times Mc- during said to that night appellant Boy he, first; or that Kinley, name, that without deceased’s shot calling because not she was scared afraid to so to him that she answered say statement, “Yes”; that, fact, his but a matter of did not shoot first; shot first. She swore deceased did not shoot appellant that all. admission as well as Any by appellant, any testimony tending to that he “fix” show was to said witness to what was trying testify in true his behalf was admissible.
Some was, witness in he deceased and who describing telling spoke of him to which made no boy, appellant objection. Appellant man, proved Mr. Blum that deceased was “a kind of a by very heavy, Murrell, about the kind of man as heavier than same Boy probably taller, Murrell and a little too.” was witness and (Murrell may There no reversible error in the was court’s jury.) testified before and later Blum to testify, proving said Hawks that permitting Bepoets. Tesas Cbikiiíai [June. nineteen deceased was twenty-one old. was with years proved out that objection appellant was man about thirty-eight old. years Treadway defendant, himself,
After the State closed its evidence the testified. Belton, He next introduced W. S. Hunter who testified that he was old; liad lived in Belton for been a sixty years thirty years; druggist there for and was editor Journal; the Belton twenty years, formerly that he had known since he boy, was that appellant time; lived for in Belton most that knew his father many He years. repu swore: “I am well with the defendant’s acquainted Belton, Texas, it On tation for truth and veracity good.” his, cross-examination State asked this “What about de witness: fendant’s, in Bell as whether he is a reputation County law-abiding citizen?” Appellant objected this and the court question promptly sustained the The objection. Appellant not answered. question had not to this time character in for truth his issue placed except Appellant placed stand, then B. Smith on the who veracity. W. Belton; testified that he was raised for an mill oil bookkeeper there had been for that he known defendant years; since a small “Are Appellant asked boy. you acquainted with de fendant’s for truth and general reputation Bell veracity County, those who himf” He am.ong answered, Q. lenew people “Yes.” “Is “It or bad?” A. The good.” State’s good asked attorney him, “Now, Smith, Mr. as I understand are you, you your confining on the as it testimony reputation affects his question reputation objected truth veracity?” to this question. The court his witness overruled The did not answer objection. question, State then tire asked him this "Are question: answer you confining your defendant’s reputation as to for truth and general in the com veracity answered, which lives?” “Yes, The witness munity sir.” The again objected answer and the over court ruled his objection. court the bill qualified by stating written by counsel defendant presented instructing or effect of jury disregard questions the same. The State any or did offer ask question seeking show appellant’s as to whether not he was a reputation law-abiding citizen. know, contended the State did not then As and could not known, that was not going put reputation in them, in evidence. Nor do or either of respect questions, indicate bad, the defendant’s reputation respect was nor that answered that witness not have ill reputation this respect The bill in no shows that what way occurred was material or good. reversible error appellant. against Huggins *5 State, Belcher v. 39 Rep., 214; 123; State, Texas Crim. v. Rep., Phillips 534; State, 59 Texas 601; Crim. 49 Rep., v. Texas Crim. Harding Rep., State, Hart v. 57 24; Texas State, Crim. Worthan v. 41 Texas Rep., Crim. Rep., 387; State, Baker v. 45 Texas 396; Crim. Renn v. Rep., 1918.] 573 v. The State. Flewelleh State, 639; State, Rep., Texas Crim. Crim. 74 Rep., Wyres 32, and other cases. stated,
As killed deceased about 10 o’clock Temple woman, de He then said Ileen whom captured Fehrenkamp, night. killed, and she swore against ceased was at the time escorting distant, Belton, her will nine miles took her from the scene to away a a way conveyance considerable walking part trying get route, her on his finally himself and from various succeed persons Belton her and reached about 5 ing conveyance o’clock getting the next The court did not err in excluding morning. testimony officer, him, to offered the effect he then by by that when surrendered to the officerhe said to him: “I have shot man in man Temple; statement, fired at me time I shot at him.” This himby could not have been of the res but any part gestae, was self-serving. C., 90, Branch’s Ann. P. sec. there authorities cited. The court did not err in excluding proffered testimony witness Irvin to the effect that while he and others were with appellant in San Antonio some four or five months before de killed woman, ceased that he told of an occurrence between said Ileen Fehren kamp, Murrell, and one Bob which indicated that woman said on that occasion Murrell, had been intimate with said and that appellant “said and did not himself nothing express being displeased manner, any took news and information in a apparently humor good and ap was undisturbed it.” parently by Such testimony was immaterial and effect, irrelevant, and, too remote presumption upon presumption. v. State, Maddox 76 Texas Crim. Rep., authorities there cited. The is uniform in this State “it rule is not permissible to im peach witness for truth and by veracity showing that his or her reputation chastity State, good. Stayton v. 33; State, Woodward v. 58 S. W. Rep., 144; Rep., McCray State, 613; McAfee v. Rep., 17 Texas Crim. App., Crim, 327”; 33 Texas Hall v. Conway 43 Texas court, therefore, 489. The did not err in excluding other witnesses offered appellant, to the effect testimony by that the State’s witness Susie Murrell’s general reputation for purity bad. chastity
Evidence that a witness has committed a actually crime is not given admissible for the the witness. impeaching The court did witness, excluding Murrell, Susie erivin offered effect some months eighteen defendant before the offense kept herein she with a married man company was committed by Wilson, name and that he her kept during nor Ducky year; him. 1 the time she went with kept during Leon Wilson Branch’s Ann. C., P. and authorities there cited. sec. gave sufficiently court issues charge correctly presenting objections made several
raised evidence. to it and *6 Beports. [June, Cbimimal refused. The on charge which were special charges, several requested self-defense was: harm will bodily of death or serious
“11. A reasonable expectation to him to be force, reasonably appears in all as using a person excuse it that there necessary his life or necessary, protect person, the reasonable apparent acted danger, provided upon be actual should at'the him from his standpoint of danger, appears apprehension or case, apparent under real time, acting such party and in such of in order to avoid necessity to retreat in bound danger way his assailant. killing defendant, that the “If the from the evidence in this case jury believe Flewellen, on out of "Wilbur of night killing, got Fehrenkamp Mrs. Ileen which he was and called the witness riding effecting and for the of of with said witness purpose purpose talking them, believe from the reconciliation and the further jury a between case, evidence in this it from the of the defendant standpoint viewing Mc- time, Boy before the of the said shooting at the that immediately a defendant that the said made dem- Boy McKinley the said Kinley if draw and fire weapon weapon onstration draw or did said manner defendant, Flewellen, Wilbur and from the and char- the said if acts, McKinley, acter on the of the said any, Boy of said part or fear of death- expectation defendant caused to have a reasonable or serious and that defendant under such acting bodily injury, fear, or and while such reasonable reasonable expectation expectation continued, killed McKinley, or fear shot and Boy facts, doubt as to such will you if reasonable acquit or verdict not guilty.” the defendant and say by your within itself. complete was a charge separate paragraph This self-defense in accordance his con- claimed amply submitted him. and as raised tention on
In court paragraph following charged another substance, that if believed from they and told the jury, the difficulty alone, reasonable doubt that or acting testimony beyond for the Wilson, with deceased intentionally sought him, act, found him did some or used having slaying one or with the deliberate intention both, some or did language, pro- and that under and to on bring occasion ducing both, said, or was under the cir- all the circumstances he did or what calculated to and because difficulty, cumstances reasonably provoke them, attacked or killed deceased they thereof deceased their if then the of his or pursuance original design, any, self-defense, could not himself on the but such killing justify ground under such circumstances be murder. He then submitted the if substance, of this and failed to converse told the jury, such a reasonable doubt then the are in- beyond find state fact jury structed that his of self-defense would be forfeited and he himself,- as the facts and could or use such means defense defend ' Flewelleh 1918.] Mm,
circumstances indicated it from Ms to be standpoint, viewing necessary protect danger, himself or what reasonably appeared at the to him time to be of his life or of serious danger injury, bodily that issue to him the benefit of reasonable passing give doubt. This and the thereof converse *7 was on the subject*and strictly a correct accordance with charge authorities. 64 Texas 2 Branch’s Crim. Rep., (Giesecke C., Ann. P. on sec. where cases the subject.) are collated many But appellant contends evidence did not raise an issue of provoking the difficulty. contentions, other
Among court contends the specially should have charged his claimed self-defense that he on “had the right to advance on it reasonably time, deceased if to him at appeared own it judged for standpoint, necessary his self- to advance.” This as after he protection applicable began at shooting deceased. He and relies Wilson v. cites In 44 S. W. this Stanley Wilson case this court said: “The court also aban with reference to charged donment of the facts by deceased. The did not call for this The witnesses charge. describe this graphically ‘fast fight being after it until it was began’ furious finished. was a continuous fight from its to close. its Some of the witnesses inception testified that Harrell, deceased, was time but retreating part fighting while; fact, around, all the it seems that the parties finally moving returned to the at point where the this de difficulty began, point fell.” ceased circumstances was Hnder those it held court should that Wilson “had the or follow charged jury to right pursue until all to himself had up danger this But no passed.” such state of facts arose in In said this case. case de Stanley appears ceased had after Stanley, attacked his attack ceasing then “was to wall, dark, behind or in the seeking get get renew the at tack.” Hnder those circumstances this court held it was proper did, the court to as it to charge, Stanley him pursue him necessary if it Ho appeared self-protection. to to be such Hence, state case. such of fact was suggested called for herein.
The evidence on issues was some .of conflicting contradictory, this, the evidence issue when sufficient raise an notwithstanding was. court, it had a and it in the State’s behalf of.the right, duty contention, and even to submit that issue on the the State’s theory have been sufficient though appellant’s justify evidence might such -In and dis- to find in favor on issue. jury appellant’s stating all the issues it is not give evidence these cussing issue, or such but disprove only evidence in detail prove tending substance, evidence, from all the were authorized give, in what jury, believe, thirty- and base their verdict upon. Appellant to find time, time, an unmarried From for a old, period man. eight years Bepobts. 83 Texas Cbimimal -[June, 576- over deceased, about before he extending three killed he claimed years he had been intimate with Mrs. criminally married Fehrenkamp, woman, her to meet- intervals having with more or intervening, less for their frequently, sexual indulgence. During period liaison he said had a number of disagreements estrangements, after a time made and renewed their illicit they'generally* relations. before he Latterly, killed more became evidently infatuated her and with He demanded she should him jealous. indulge alone and her to no man, extend sexual favors and objected to her with other man. About ten going he killed days he had an him Belton, to meet at engagement certain hour. Instead of at the him time she went hunt- agreed grape on his with him. ing country riding motorcycle When an hour or she did meet two after the time agreed, demanded to know she had not met at the time why agreed. Along time, before, with, about this deceased had been shortly going see, both lived going Fehrenkamp. They Temple, and ap- pellant knew this. She did not want to know she had been grape *8 occasion, on said with deceased and when he hunting country n demandedto know her she had with him she told why delayed another, them, him one had her. Each thing, delayed first stating time, she would tell him these when causes he would tell her delay lie, her that that was a and he told she had to tell him truth. finally him she told she had been with deceased in the Thereupon country and because she immediately, hunt. He had been de- with grape her ceased, swore, face, struck a violent blow the as she and bruising showed for several afterward, her face and which eye, days and blacking and She then at injury. her considerable once ceased all pain caused him, to refused see to with and talk with him or appellant Telations thereafter, she, seems, with except -otherwise communicate talked he with him when tried to her to to Waco phone get go -over with while in with Mrs. one him, company and also Guinn time. From that killed deceased he tried to until he her to persistently time on make get her, her, He wrote to and had Guinn, him. Mrs. phoned with their up him, friend, to see her for to her offering pay Guinn) mutual (Mrs. ¡$1Q to see and even Mrs. Mrs. Fehren- Fehrenkamp offering to get all her and her child clothes would need for to buy kamp he her above, tried to to with him to get go stated Waco months. As deceased, Wilson, and while in he he killed Waco had before day her to him in himself, to come to Waco. tried She get posi- and he refused all his overtures and refused to even talk tively and persistently he was at Waco when and Wilson both while he phone him over the to he so, the same before killed him that day, her to do night. tried to get with Susie Murrell-when he was appellant talk by urging In this phone Waco, Mrs. Murrell to him at swore he Mrs. Fehrenkamp her to bring her with because that “You had better come and other bring said: said, more”—he “that there to her other any not be take might party . 79JS.] The v Flewellew This not he her more.” reference there to take any might
party deceased, no other than have meant could him to “that other party” then, and before shortly was the who only for the deceased and was the anywhere only been, Fehrenkamp Mrs. taking had her far as have So recently. appel- been with man was shown who to see concerned, go had Fehrenkamp lant desired, also, so she time place with deceased see concerned, her with go far had the right deceased, whenever he knew Appellant her and wherever pleased. her rela- off said woman he, breaking cause of only was the direct deceased, killed time before tions with him. Just a short he From as shown. had beat her had been with because she up to find and evidence, authorized were standpoint jury the State’s he killed the night believe that said woman hunting up her to make deceased, for and with the hope getting the purpose time, him, with “that other party,” but that at the he sought him, and to did, with that woman wreak find as he expecting doubtless him, or taken her from him because he had upon away his vengeance make him and her refusal was the cause of breaking him if he and kill got opportunity. he further shows that when and Wilson reached Temple evidence Belton, their hired the way Waco on where they on vari- man take had the driver to drive around them, Temple he Belton, he had him to drive not on their route to slow ous streets woman, the home of said and when they reached that past point said, as he to do stop, began ordered the driver to so appellant “Well, here, alarm here; want to we will around stop we don’t everybody drive then continued to drive the street on slowly up up.” They which he met the women with their said woman’s home until escorts about a block from their home. was on the watch while thus riding must to meet these along expected persons, immediately the driver to so ordered could so stop, do doing *9 out of the automobile—Wilson did too—and took after hurriedly got discovered him the time he and by them. discovered them They they run from him to save their their lives. immediately began persons so their and Wilson in hot flight continued They pur- ran until him some 200 shot down. Soon suit after they yards to several eyewitnesses this chase began, according appel- at lant and Wilson both continued shoot- began shooting him, down like a and killed dog until shot him de- without ing (cid:127) ceased a word or whatever to either of doing anything them. sajdng swore, however, he did not at shoot deceased until de- and shot at him. The State’s ceased swore pulled pistol eyewitnesses at him did not shoot at time that he deceased did not, or court, all. Whether did in the at draw any pistol claim self-defense accordance his con- submitted quoted, Vol. Crim.-37 Bepobts. Cbimikal. [June,
'578 raised at all. him, if his self-defense was tention raised even and as by case of a diffi- hard of a more aggravated It is to conceive shows occurred. Here than the evidence in this case culty taking of a street of Temple, on the sidewalk was quietly walking along sister, Murrell, her hus- her Her Mrs. home. Mrs. Fehrenkamp be band in the Deceased had the company. right were same along He nothing where he was and do what said and did doing. whatever whatever after to take appellant. Appellant right whether, down, and run them for the deceased and Fehrenkamp not; to her or or for the purpose talking capturing woman and as she swore he forcibly taking away did, after he had—and it was of the same just part transaction^— killed deceased. He chased deceased and said woman for about 300 yards before he killed him at him some considerable began shooting distance before he succeeded in his bullets finally killing striking deceased three times before he succeeded down. There shooting can be no of doubt that from the particle facts this case unquestioned the deceased had the to draw right and shoot at pistol Wilson, or either, and if he had done so it would unquestionably been in his self-defense. Deceased was the on this occasion who person had a defend himself or shooting killing appellant Wilson, or both of them. So that whether the issue of not, was in or this case of self-defense surely perfect right did not arise in favor. appellant’s The law is as stated in Stats., Vernon’s Crim. “If 653: page per
son his own hy act about the wrongful brings necessity taking killed, life of another to himself he can prevent being that such say sélf-defense; killing necessary but the will be imputed malice, express implied, reason of the act which wrongful about, brought or malice from which it was done. A can not person ’ avail himself of a which he has necessity knowingly wilfully brought A himself.” number of large decisions of this court directly point so law is cited. See establishing also 2 C., Branch’s Ann. P. 1953, section where he down the lays same doctrine and cites many cases. See also Thurman v. 34 Texas Crim. App. Davis v. 196 S. W. 533. law,
Hnder the and the facts and .circumstances of case, the court not commit reversible error in did submitting provok- converse thereof terms ing he did. will affirmed. judgment
Affirmed. ON REHEARING.
January PRENDERGAST, Judge. of the- some Appellant again presents *10 and. opinion, him in the original decided which were questions against 579 The Flewelleh v. 1918r the court did complains which pass upon presented, which was of the of the court complaint charge defining malice malice and aforethought.
The on this this: is subject aforethought court’s “Malice act, one of sound and intentional of an unlawful doing voluntary means and to accom- and discretion memory ability purpose, of the act. plish the reasonable and probable consequences which, all those states of mind under “Malice includes aforethought will in law without cause which any takes killing place person mind It homicide. condition excuse or extenuate justify, mis- bent on of social fatally which shows a heart regardless duty or words from acts committed chief, existence of is inferred which spoken. intentionally done denotes a act
“Malice in its sense legal wrongful last His was directed to complaint without or-excuse.” just cause malice in the word “just” paragraph just defining quoted This cause or excuse. before the words used instead of word “legal” of this court has been di But the holding criticism is hypercritical. “malice definition of both The court’s his contention. rectly against a literal the court’s copy herein is and “malice” aforethought” expressly which was State, 75 Texas Crim. Rep., v. charge Witty 4, 1 note Vernon’s For other cases see this court. approved as correct by cited. Stats., 689, and cases there p. Crim. C., its popular P. White, says: “Although, in his Ann. Judge another, the hatred, legal ill will or hostility
sense, finalice’ means all extensive, and includes is more aforethought’ of finalice significance takes place of a person which the mind under states of the those excuse, extenuate in law justify, will cause which without any, without intentionally, act of a wrongful homicide. The doing mind which shows Ht is a condition excuse.’ cause or just mischief; the exist bent and fatally of social duty heart regardless Lan or words spoken.’ from acts committed is inferred ence of which Texas, 33; v. State, 25 Tooney v. 462; State, Texas, McCoy der v. 12 State, 6 Texas App., v. Crim. 163; Evans App., State, 5 Texas Crim. State, v. 8 90; McKinney Crim. State, App., 8 Texas v. 513; Harris 561; State, App., 13 Texas Crim. 626; v. Kemp App., Texas State, v. 330; Cahn App., State, 14 Texas Crim. v. Hayes 247; Powell 709; App., v. Gallagher Crim App., Texas Crim. Vela App., Texas Crim. will above given of finalice’ the definitions Either of the term definition and so charge, in a sufficient State, 30 Martinez meaning. the same substantially embracing 129".” App., were court the lower complains again also the issue raised evidence holding wrong that issue testimony raising appellant. with deceased matters There are two opinion. original stated was succinctly *11 Bepobts. 83 Texas CnnmtAL {June, in connection therewith which here will be stated. He claims that the evidence shows his with deceased the he killed him night a mere casual and accidental that he did not know that meeting, it was deceased at the time him; he killed and that the court the original opinion, wherein it was stated that deceased and Mrs. Fehrenkamp after began to run from him they continued their with flight Wilson in hot until had run him pursuit "some 200 they yards” ; shot him down the complaint that the evidence being showed the dis- tance chased him they was not "some 200 much yards” very shorter distance. All the shows that and Wilson testimony appellant followed and chased deceased from the where out of the point they got to where the jitney Herndon, deceased fell. Mr. one of body appel- witnesses, lant’s swore that this distance was like 150 or "something 200 yards.” himself swore that this distance was "about anywhere between 125 and 200 more, not so much.” yards—maybe maybe Ho other witness undertook However, give distance. bemay that the distance was not as much as 200 yards.
Appellant himself swore that he knew deceased "when I him.” saw That he knew Bob a brother of McKinley, and had Boy McKinley, known him a while; that good before the shortly he saw deceased at Belton and asked "Aren’t ?” you Boy He McKinley replied was; and he said he so because he thought looked so much like his brother Bob. It was also shown that deceased had lived Temple for a number of himself years; appellant had lived there one year, Belton, he lived and that at latterly few miles from only Temple, access, two near places being easy connected an interurban woman, car line. That his said Mrs. Fehrenkamp, lived at Temple, with whom he had access there. It was frequently shown also that ap- pellant deceased knew on and calling with Fehren- going Mrs. and that kamp was at that person time. Just a few days before this he had beat her because she did with go deceased. Ap- pellant swore he was for Mrs. and, hunting Fehrenkamp night, course must have if suspected he did not know that if he found her out from her home like he did find her that she would be with deceased and not He another. driven around her just home and he other witnesses who testified on the subject said that he had the jitney man drive him down the street lived she on to almost the corner of the beyond block where she lived. He Susie, he saw her and her says sister escorts, their respective Murrell, deceased and as turned Boy they Fourth the corner into Street at the cold house. The storage testimony shows that there was electric clearly center of the street light addition, this corner, and in there was an electric at the (cid:127)right light itself, comer of house which said cold must made it storage very them, He light. recognized they immediately immediately recog- He, him. ran from him for their lives. They haste, nized undue them, after out and took after got just beginning chase, Murrell swears or Wilson said them, “Bun, you Flewelleh 1.918.] them, while chasing just
sons of bitches.” Susie Murrell swore that “Run, son-of-a-biteh.” passed her, you From all the jury unquestionably other items deceased Were it was authorized to believe that knew turned corner at soon as who was with Mrs. Fehrenkamp house, sixshooter and called after him the cold and took storage bitches,” “Run, sons of both, to him you and Mrs. Fehrenkamp son-of-a-bitch,” chased “Ruu, and still himself, later to away them Fehrenkamp with the intention of forcibly taking *12 to him so as to him. all for intent goad pro- and with the him, as and even shoot at voke him to his pistol, and induce him draw kill have an excuse to him that he could did, so says Even if under claim of self-defense. appellant’s the pretended house was storage at the cold deceased when he turned comer thereafter was wilful accidental, casual or did and said yet all that he him to intentional, calculated to reasonably provoke and not only actually but Fehrenkamp, attack to save himself Mrs. as claimed provoke by appel- did so if he did to attack appellant, and believe and lant. to so find The evidence clearly justified jury to' the court sub- raised to authorize and was so question require as he did. mit the of difficulty provoking We see decided no necessity discussing again questions were all decided. opinion. They correctly original ' is overruled. The motion
Overruled. Judge. MORROW, does not make case involving The evidence law the difficulty. Judge that
MORROW, am unable conclude (dissenting).—I of the law of case authorized a submission facts self-defense; nor am I satisfied in connection with that of evidence self-defense was raised. State’s the issue of perfect that From or excuse. its view- to a homicide justification without points and the between the deceased appellant, there no point the latter was and shot deceased while engaged pursued but the appellant evidence the effort to From except escape. appellant’s act an incidental of the deceased was his pursuit inference to be drawn was the companion who talk with the woman efforts and desire to to his manner in conduct and undertaking Appellant’s of the deceased. reasonably calculated and doubtless wrongful interview was obtain this demonstration make a him, or at least to to attack to cause his con- In of such a character fact resist advances. appellant’s claims, that the de- true, if it be opinion I am of duct that so, do that appellant a demonstration to make attack him or ceased did self-defense, but that his right not right possessed that, degree conduct to his wrongful modified by defend was previous Eepobts. 83 Texas Cbimbstal [June, viewed in most light, its favorable the homicide be manslaughter Reed See Texas Crim. cited in cases App., Law, Branch’s not follow see. it does Though wrong that appellant would con all defend life should his right forfeit duct about an deceased, bring upon appellant, having assault unless the formed the intent to kill the at or seriously injure provoked tack that he to effect See might have occasion Jones purpose. 611; Thumm App., App., Law, cited. In other Branch’s Crim. sec. and cases words, the intent to kill ante or harm his must be seriously adversary cedent to the all defend in order to one of provocation deprive right an lost against assault is such provoked by only when the assault is effect unlawful intent into provoked carry purpose. In this instance I am view that impressed with not did know the identity Fehrenlcamp’s companion; conduct to the homicide a desire and induced leading intent, events, intent to kill all to obtain pos session time. of the woman who was the of deceased at the companion I, therefore, think trial that the of the case theory ap in order to have pellant provoked the combat the occasion produced harm, deceased or pretext bodily doing great therefore, evidence, and, from the erroneous. I arising recognize, *13 however, that there is in when a difficulty often great determining just combination of facts a a on the law of diffi justify charge provoking I know that culty, and associates this record the most my given to: and careful investigation be painstaking thought. They may right. however, conclusion, Unable to I reach that take this occasion to briefly express reasons. my Presiding Judge DAVIDSON, motion re (concurring)—On - the
hearing case narrowed itself down to that proposition, provok case, and, therefore, a is not in trial the the court erred ing difficulty limitation- in such his self-defense. a putting theory It is very close case, as whether self-defense was an issue in question but the court resolved in this favor defendant and oh gave instruction subject. Appellant contends that not provoking difficulty case, in the should reversed because of un being judgment this warranted limitation on It right self-defense. sometimes may occur that there is rather a narrow between a diffi margin provoking self-defense. imperfect culty into my purpose go- There be cases of question. may imperfect self-defense inde arising from pendent apart the mind of provoking difficulty, the writer that does not here arise. The question provok however, a in the difficulty, writer, 'mind of ing presented record.
Judge Prendergast stated the has facts it is deemed pretty fully unnecessary restate the evidence. That had been appellant having 1918.] The State. Flewelieh company was in relations the woman with whom deceased illicit That he knew the to be conceded. on the seems night tragedy so, or was him, about to do enjoying, or was supplanted think, this record is,. I shown by friendship, her favors and He had of the witnesses. and the testimony statements of appellant out before this killing being the woman shortly had trouble testimony, the woman’s during This is shown by with deceased. her a blow the face. This struck between them he this trouble him. relations with He and her refuse to' have further caused to cause a between Wilson, undertook themselves friend, sister, been declined. came from They which had woman and were unable women and to find them. Temple see these Waco through home, went about them these away parties Finding discovered two women and them. Finally town seeking sidewalk. im- the street or along their companions walking of the car with a his hand and pistol out mediately jumped pursued ran like 200 They something yards, appellant and deceased. the women seems, them. could not overtake Appellant, friend and his pursuing women, the deceased and the and holloed at de- or had not overtaken ceased, “Run, son-of-a-bitch.” it is claimed deceased Thereupon turned and fired. There is he did fire. case,
Wherever in a whether for or an issue is either against presented trial, it is the of the court to submit duty the law party during If there applicable to that issue. was evidence case raising issue of then it was of the court to sub duty provoking difficulty, course, issue without the issue of self-defense mit that Of jury. the case a would not be charge justified. If chased the deceased and killed without holloing mentioned, or shot him epithet opprobrious while applying and deceased had the issue of self-defense nothing, done running, not be in the case. If in the women and de chasing ceased was about holloed at as it was get away, did, said he of that raise opprobrious is sufficient to applying epithet issue under the authorities. After using fired, if and deceased had a epithet of self- defense, this limitation on *14 proper his of self- right C., Ann. P. 1094, 1954, defense. In Mr. Branch’s on section will page collation of the be found a authorities on the of a question provoking is stated that while the must have said or done difficulty. party at the time of the to homicide deceased to attack something provoke to have a the pretext so as acts killing yet prior will to character to vzhat defendant said or be looked to did at the time give of homicide so as to determine his intent and to his explain words State, 228; acts. v. 49 S. W. State, McGrew Mason v. Rep., 163 W. 66. this view of the Rep., S. Under law acts and matters pre on the his ill ceding, will and bad part appellant, towards feelings relations, deceased account of the woman and on their would shed light Beports. 584 83 Texas Criminal {June, the issue' of upon intent at the time appellant’s just preceding and at time of him a son-of-a-bitch. It is also laid calling down the authorities that if the for the State shows that de by testimony with intent sought fendant deceased and offered provoke difficulty started, insult before the it is not error to shooting an charge on State, Barstado v. 48 255; Texas Crim. difficulty. provoking Rep., 54; 4 State, State, 61 Texas Crim. Sorrell v. Rep., v. 74 Texas Gray It is also held that it is not Crim. 505. error to Rep., pro to the if there is effect that testimony defendant voking assault, first cursed deceased before either made and the State’s made defendant the first assault and is that defendant’s theory theory State, 772; v. 25 W. self-defense. Coleman S. Bateson v. Rep., is 46, 80 S. W. 88. And where there State, Rep., Rep., deceased and deceased then that defendant cursed picked testimopy up defendant, stick and started toward the issue of provok raises and it was not error on the the court to so ing difficulty, part .of State, 47 444, instruct jury. 83 S. Tardy Rep., W. State, Best v. 554, Texas Crim. Rep., 135 S. W. Rep., Rep., 582. it was said Sanders Again S. W. issue of is raised provoking when de bitch, called and that
fendant then prosecutrix prosecutrix hit de fist, and that fendant with defendant struck her with a hatchet. under all the opinion The writer facts and circumstances the homicide detailed introduced to prior show the con- mind woman, dition toward deceased with reference to the appellant’s them when found jumped and that out of the woman, and the the deceased when chased were about to “Bun, son-of-a-bitch,” exclamation to deceased to escape was of deceased intended arrest and cause him flight If fight. fired the first shot reason of these conduct, acts and this raise the question it would and would difficulty, I, therefore, limitation of self-defense. concur that the holding Prendergast the diffi- Judge under the facts. was properly submitted culty D. Powell J. v. The No. 4883. Decided June 1918. Collector—Pleading—líame, 1.—Forgery—Indictment—Tax charged delinquent forging report, tax Where defendant county allege collector failed the defendant tax indictment obligation prosecution, pecuniary to the the such instrument would create this, although quash; and on motion to indictment bad report as tax col defendant described in the certificate attached lector, equivalent direct descriptive of the instrument to a Following Beasley allegation the tax collector. the defendant was in fact