53 S.W. 119 | Tex. Crim. App. | 1899
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of ten years, and he appeals.
The Assistant Attorney-General has filed a motion to strike out the statement of facts on the ground that the purported statement of facts in the record is not properly certified to by the judge. On an examination of the record, we find at the conclusion of said purported statement of facts the following indorsement: "It is hereby agreed that the above and foregoing is a true and correct statement of the facts in the above entitled and numbered cause. [Signed] A.C. Hamilton, Dist. Atty., 49th Dist. A. Winslow, C.A. McLane, Attorneys for Defendant." Below and opposite this is the signature, "A.L. McLane, Judge." Then follows the file mark of the clerk. The question thus presented is the sufficiency of the above indorsement to a statement of facts. Article 824, Code of Criminal Procedure, provides: "If a new trial be refused, a statement of facts may be drawn up and certified and placed in the record as in civil suits. Where the defendant has failed to move for a new trial, he is, nevertheless, entitled, if he appeals, to have a statement of the facts certified and sent up with the record." In order to ascertain the method required in authenticating the statement of facts, we look to articles 1379, 1380, and 1381 of the Revised Civil Statutes. The first of said articles provides: "* * * If the parties, or their attorneys, agree upon such statement of facts, they shall sign the same, and it shall then be submitted to the judge, who shall, if he find it correct approve and sign it, and the same shall be filed with the clerk." Article 1380 provides: "If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements during the term, make *163
out and sign and file with the clerk a correct statement of the facts proven on the trial," etc. In support of the motion the Assistant Attorney-General refers us to Hess v. State, 30 Texas Criminal Appeals, 477, and Wilson v. State, 34 Texas Criminal Reports, 355. Hess v. State is a case in which the court held what purported to be a statement of facts, which was not signed by the attorneys, but was marked "Approved" and signed by the judge, not a sufficient authentication of same as a statement of facts. This was followed by Wilson v. State, 34 Texas Criminal Reports, 355, which was similar to the above case in the authentication of the statement of facts. See also Morse v. State, 39 Tex.Crim. Rep., and Wright v. State,
This is the second appeal in this case. For former opinion, see 39 Texas Criminal Reports, 662.
Appellant was placed on the stand as a witness on his own behalf, and it was proven by him that he was a peaceable man, and had never had a difficulty with anyone. On cross-examination the dictrict attorney asked him with reference to a difficulty with an old Mexican woman by the name of Olivares, and asked him if he had not cut her in said difficulty. The defendant denied that he had cut her, but admitted that he had had a difficulty with her; that she first cursed him, and picked up a big rock and threw it at him; that he dodged, and it struck the wall; and that he then picked up a big piece of cinder and threw it at her, and she fell and cut herself on the rails. Appellant objected to this testimony on the ground that it put the defendant's character in issue, that it was a collateral matter, and that said inadmissible testimony was calculated to injure the rights of the defendant before the jury. We believe defendant had put his character in issue by proof that he was a peaceable man and that he had never had a difficulty, and the testimony was in rebuttal of his evidence. However that may be, we fail to see any injury in said testimony, inasmuch as appellant denied cutting the old woman, and showed by his evidence that she was to blame in the difficulty which occurred between them. We fail to see how any injury ensued to appellant.
Appellant also excepted to the refusal of the court to give a number of instructions requested by him. We deem it necessary to notice but one of said refused instructions, which is as follows: "If you believe from the evidence that defendant and deceased had, a short time prior to the homicide, quarreled, and otherwise indulged in the use of such language towards each other as to leave the impression upon the minds of the witnesses who have testified before you that deceased and defendant were ready to engage in a mutual combat, but that immediately thereafter defendant, Yldefonso Guerrero, abandoned such purpose, if any such he ever had, and went away for the purpose of avoiding a difficulty with deceased, but was shortly afterwards overtaken by deceased, and was induced by deceased to return with him for the purpose of making *165 friends and settling their dispute, if any existed at the time, in a peaceable and amicable manner, and the difficulty was then renewed by deceased by the use of such language, coupled with any such threatening acts, as to make it reasonably apparent to defendant that it was the present purpose and intention of deceased to murder defendant or to do him serious bodily injury, and defendant killed him, he is entitled to be acquitted." The court gave a general charge on the subject of self-defense, authorizing the jury, in general terms, to acquit the defendant if they believed deceased made the first assault on him in such manner as to cause a reasonable apprehension of loss of life or of serious bodily injury. The court, however, did not give a similar charge to the one refused, or one presenting in detail appellant's right of self-defense in case appellant agreed to engage in a mutual combat, and afterwards abandoned such agreement to have a mutual combat, with deceased. Nor did the court give a charge in favor of the State presenting the issue of mutual combat, as against defendant. The testimony for the State tended strongly to show a case of mutual combat, and no abandonment on the part of defendant, but an undue advantage taken by defendant of the deceased during the mutual combat. On the other hand, the testimony of the defendant tended to show that he did not agree to a mutual combat, but merely went along with deceased to a secluded place in order to have an amicable settlement of their difficulty, and the deceased made the first assault on him by shooting him with a pistol, and he merely acted in self-defense. Unquestionably if the court had given a charge on mutual combat, then it would have been error for the court to have failed to give a counter charge presenting appellant's theory of the case, arising from his own testimony; that is, his refusal to enter into a mutual combat, or, having agreed to enter into a mutual combat, his subsequent abandonment thereof. But, as stated before, the court did not, as it might well have done, give a charge in favor of the State on the subject of mutual combat, by its effect cutting the defendant off from the right of self-defense altogether, but gave a general charge on the subject of self-defense, ignoring altogether the idea of mutual combat, and authorizing the defendant to act in his own self-defense, if he were first assaulted, regardless of any mutual agreement to fight. Under the circumstances, we think this charge was sufficient, and more liberal towards defendant than he was entitled to. Indeed, the court would have been only authorized to give the requested charge on appellant's own testimony, and a review of that, in connection with the other testimony in the case, but barely presents the theory asked in the charge. However, as stated above, in our opinion the court's charge on self-defense was more liberal towards the defendant than would have been a charge on mutual combat, and a counter charge presenting appellant's theory on that subject. We find no error in the record, and the judgment is affirmed.
Affirmed. *166