30 Tex. Ct. App. 203 | Tex. App. | 1891
Lead Opinion
This is an appeal from a second conviction for murder of the first degree, the punishment being fixed at confinement in the penitentiary for life.
Seven errors are assigned: (1) The overruling of an application for continuance. (2) In admitting evidence. (3) Refusing to exclude improper evidence. (4) Refusing charges asked by appellant. (5) Errors in the charge in chief. (6) Improper remarks by counsel for the State in the closing argument. (7) Because counsel for the State was permitted to reread reproduced testimony in the final argument.
This was the second application for a continuance, and if diligence is shown, still the facts desired from the absent witness were proved by other witnesses. Walker v. The State, 13 Texas Ct. App., 618.
The State proved certain facts by Mrs. Vidaurri without objection from the defendant, whereupon defendant moved to exclude certain parts of her testimony, and this motion was overruled.
We have very carefully examined the facts sought to be excluded, and when they are considered in connection with all the facts in the case we are not prepared to say that they are not competent evidence. But concede their incompetency, the questions to this witness were not so framed as to preclude objections by the defendant when the evidence was admitted, and he will not be permitted to speculate on the answers.
There is nothing in the fourth bill of exceptions.
There was a general exception to the charge of the court as a whole and exceptions pointing out supposed errors in the charge. The definition of express malice was not objected to specially. A general exception to the charge is no exception at all, and the supposed error in such state of case will be considered as if no exception to the charge had been taken. Conceding the error, the question would then be, was it such as to injure the accused when viewed in the light of the facts in this 'Case1? We are of the opinion that there was no injury to appellant from this error.
The court below gave in charge to the jury the law applicable to article 572, Penal Code, and then submitted the law applicable to article 570. In this there was no error, though the general practice is to submit the law applicable to article 570 first.
Counsel for appellant point out a great many supposed errors in the charge. We have examined this charge closely, and are of the opinion that when tested by the evidence as presented to us in the statement of facts it is a correct application of the law to all of the legitimate phases of the case. The reporter will give the charge in full.
In his closing argument counsel for the State said to the jury: “Counsel for defendant tell you that you must not disbelieve the defendant because he is the defendant. Gentlemen, this is not the law.” At
It is not contended that the remarks of the judge were not heard by the jury. If they were, then the statements of the district attorney, if improper, and this is not decided, were rendered harmless, for the judge stated that the defendant stands as any other witness whose credibility is to be judged of by the jury.
We have read and reread the lengthy brief of counsel for the appellant. We have briefly noticed as we think the most important points raised, and must say that if there be reversible error jn this record we have been unable to discover it. As we view the case, this was a deliberate and unprovoked murder. We reach this conclusion after a very searching examination of all the testimony tending, or which is relied upon as tending, to excuse or mitigate the homicide. We have examined the charge not in the light of the State’s evidence alone, but in the light of every theory presented by any testimony which might be construed favorably for the defendant. We believe the charge taken as a whole is correct.
The judgment is affirmed.
Affirmed,
Davidson J., being disqualified, did not sit in this case.
Rehearing
ON MOTION FOR A REHEARING.
The writer has read this record carefully three times, has given it a thorough consideration, has read the motion, briefs, and arguments through in connection with the record, giving to each a searching investigation. This has been induced not only by the gravity of the charge and punishment, but also by the great confidence exhibited in the brief and argument of counsel for the appellant—counsel than whom I know none superior in this State. The argument is written “with a strong hand,” and we will try to answer it.
We will not discuss the first and second grounds for rehearing, believing that they are not well taken.
The third ground, “that the special charges asked by appellant were pertinent, applicable, and material. They were refused, and the court did not in fact, effect, nor in substance cover the points made by said refused charges, yet the court say there was no error.”
How, what is the case with all of its phases?
The State proved by the positive evidence of Luciano Salinas that he got down and sat under a small mesquite. After a little while deceased came up on horseback and saluted those present and asked Hr. Grimes’ permission to take the stock. Grimes told Andres to tell deceased to wait until Morel came. Deceased said “all right,” and remained standing. Then defendant came up in front of deceased and said to him, “Why are you branding those calves?” Deceased replied, “Because they belong to me.” Defendant replied that they did not belong to deceased. Deceased then said, “That is all right; we will settle the matter at law.” Defendant then said, “There is no law nor anything,” and then drew out his pistol and shot deceased. At the time defendant pointed his pistol at deceased the latter was sitting on his horse with his left hand resting on the horn of his saddle and his right hand holding the reins resting on top of his left. When defendant pulled his pistol the deceased with his right hand reined his horse to one side away from defendant, and at the shot fell backward off his horse.
Deceased did not have anything in his hands when he fell. He was unarmed. When defendant pulled his pistol he struck spurs to his horse and jumped him toward deceased, and at this moment Mr. Grimes made a motion as if to stop defendant and said, “Stop! don’t shoot him.” At the time of the shooting all were on horseback save the witness. Only one shot was fired. Deceased did not fire. Defendant after the shooting walked with his pistol in his hand around the body of deceased. Mr. Grimes then said to Andres, “Tell him to put his pistol in his scabbard.” Defendant put up his pistol and then started off and the others followed a short distance. Defendant remarked, “I am going to deceased’s house to see who else is there.” Grimes then said, “Tell him not to go.” Deceased did not move after he was shot. After deceased fell his horse ran off. A short time after the shooting Morel and Porfirio came up and they all went off.
Though Grimes did not see the deceased at the very moment he was shot, because he was looking at the defendant, he very strongly corroborates Luciano Salinas on every material fact.
Appellant’s theory of the case is developed by the testimony of Andres Garza. He says: “I was present at the killing, which took place on the 17th day of February, 1889, in Zapata County. Those present at the time were myself, Evaristo Rodriguez, Grimes, defendant, Pan
This theory is supplemented by these facts: That appellant had business at the place of the homicide and was lawfully there; that a gun was seen in the scabbard hanging to deceased’s saddle; that serious threats had been made against the life of appellant by deceased and the threats had been communicated to appellant.
The case made for the State presents a deliberate and unprovoked murder. The appellant says not so; that there is reasonable doubt of this; that the homicide was justifiable or may have been because of the .actions and demonstrations of the deceased at the time of the killing, viewed in the light of the threats and violent character of deceased.
There is another feature of the case for the State. To the contention of appellant the State replies, that if in fact deceased made demonstrations tending to show that he intended violence toward appellant he was provoked thereto by appellant, and that the provocation was given or the occasion produced for the purpose of obtaining a pretext to kill the deceased, and that therefore the theory of appellant will not avail.
We have stated the case with all its phases. The question arises, Did the learned judge who tried the case, in the charges given to the jury, furnish them with the proper rule of law—that applicable to each phase of the case made by the evidence?
To the State’s theory the law was correctly applied, unless, as is contended by counsel for appellant, there was error in the charge relating to the evidence tending to show that appellant provoked the difficulty or produced the occasion to kill. If appellant provoked the difficulty
By reference to the icharge it will be found to contain them. The court charged:
“If you believe, therefore, beyond a reasonable doubt that defendant by his own wrongful act brought about the necessity of killing deceased, or provoked the difficulty with the apparent intention of taking the life of the deceased, intentionally and with a view thereto, and that under such circumstances he shot and killed deceased, then defendant’s plea of self-defense will not avail him, and the homicide would be murder of the first or second degree according as the facts and circumstances may justify the jury in finding. But if defendant provoked the difficulty without any intention to kill or inflict serious bodily injury, and suddenly and without deliberation did the killing under the immediate influence of sudden passion arising from an adequate cause as herein explained, while the homicide would not be justifiable, it would be manslaughter as that term is herein defined.”
This charge is supplemented by that given at the request of appellant, as follows:
“If you believe from the evidence that deceased did not actually and in fact have arms on his person at the time he was shot, yet if you further believe from the evidence that at the time the shot was fired deceased had made or was in the act of making a movement as if to draw a firearm, and if from that movement the impression was made on the mind of defendant that deceased was in the act of drawing a firearm to kill or to attempt to do so, then defendant was not called on to retreat, but had the right to stand and defend himself even to taking the life of deceased, provided you do not further believe that defendant provoked the difficulty with the deceased with the apparent purpose to then and there take advantage thereof and kill deceased or do him serious bodily harm, and if you so. believe you will acquit the defendant, for in that case he would be guilty of no degree of culpable homicide.”
How, will it be contended that the rule of law applicable to the question of provoking the difficulty or producing the occasion was not properly given in charge to the jury"? We think not.
Counsel contend with great earnestness that there was error in regard to self-defense in another respect—that it was wrong to instruct as was done in the following charge:
“Homicide is justifiable in the protection of the person from any unlawful and violent attack, and in such case all other means must be*266 resorted to for the prevention of the injury, and the killing must take place while the person killed is in the act of making such unlawful and violent attack, or while the person killed is doing some hostile act or making some hostile demonstration that would, viewed from the standpoint of the slayer, produce, in his mind a reasonable fear or expectation of death or some serious bodily injury.”’
Was this law? Most certainly it was. The charge is in the language of the statute.. It is not objected that there were no facts requiring such a charge, but it is contended that it was wrong to require the accused to resort to all other means before taking life. If the facts of this case tend and tend only to show that deceased was about to kill appellant, then article 570 of the Penal Code should have been given in charge and the court should not have submitted to the jury the provisions of article 572.
Let us give to the testimony of the witness Garza all the strength to which it is justly entitled, and let us consider this testimony in the light of the threats made by deceased, and in the light of his violent character, does it tend to show an attempt on the part of deceased to murder appellant and nothing less? If so, the charge requiring the appellant to resort to all other means before killing was not called for and should not have been given.
But if the evidence of this witness did not tend to make a case in which deceased attempted to murder and nothing less, then the charge was called for and should have been given.
Looking, then, to his testimony, why should we infer that deceased attempted murder only? Why may we not infer that he intended to make some other violent attack beside an attempt to murder? What right or reason have we to presume conclusively that it was his purpose and intent to murder appellant and not to inflict a lesser degree of violence upon him? Under communicated threats, will every movement, demonstration, or gesture made by the deceased warrant only the inference that he intended to kill? Certainly not.
If a homicide is committed for the purpose of preventing murder, the person killing is not required to resort to other means to prevent the murder or an apparent attempt to commit murder. Art. 570. But if to prevent any unlawful and violent attack beside murder and those mentioned in article 570, then all other means must be resorted to for the prevention of the injury. Art. 572. These are plain provisions of the code, and must be enforced by the courts.
The next question is, What degree of violence, or what must be the quality of the unlawful and violent attack mentioned in article 572 to justify the homicide—not reduce, but justify? This is answered by article 574: “It must be such as produces a reasonable expectation or fear of death or some serious bodily injury.”
Let us illustrate: A strikes B—fells him to the earth; the blow produces pain and bloodshed. B rises, draws his weapon, and while A is repeating his blow B kills him. Now, if the attack is such as to produce a reasonable expectation of death or some serious bodily injury in the mind of B, he would be justifiable; but if the attack was not calculated to, nor did not have such effect, he would be guilty of manslaughter.
A makes an unlawful and violent attack upon B—not such, however, as to produce in the mind of B a reasonable expectation or fear of death or some serious bodily injury. B kills A while in the very act of making such attack after resorting to all other means to prevent the injury. Would B be justified or would he be guilty of manslaughter? Who would contend that B would be justified?
The judge who tried this case submitted to the jury the rules of law contained in articles 570, 572, 573, and 574, and also the rules relating to justifiable homicide under threats. These rules of law we think were correctly given, and when the charge in this connection is considered as a whole, it will we think be found to contain the law applicable to the case and every phase of the case.
We have considered the case very closely, and while we have the highest opinion of the learning and ability of the counsel for appellant we must adhere to our first view of this case. We do not believe the record contains a reversible error, and the motion for rehearing must be denied.
Motion denied.
Davidson, J., being disqualified, did not sit in the case.
