Hinton v. State

| Tex. | Jul 1, 1859

Roberts, J.

The appellant was convicted of murder in the first degree. Upon the cross-examination of Mrs. Whittaker, a witness for the State, she stated that her husband had previously told her, that Hinton would kill him some day. This evidence was not objected to at the time it was given, nor was any motion made during the trial, to exclude it from the consideration of the jury. It might have been, so far as the record shows, a proper response to some question propounded by the counsel for the prisoner; therefore, it is not now any cause for reversal of the conviction in this court.

The defendant’s counsel asked the court to charge the jury, “ 1st. That if they believe from the evidence, that the deceased, P. C. Whittaker, followed defendant from the house, with intention of inflicting on him, said Hinton, any bodily harm, and used such language and gestures as might reasonably induce Hinton to suppose that Whittaker intended to assault him with his pocket-knife while he was going away from the house; if he, Hinton, under the sudden impulse of the moment, and in close proximity to Whittaker, influenced by sudden resentment or terror, without cool reflection, impelled by sudden motion, committed the homicide, the act would be manslaughter, and not murder.

“2d. That if Hinton had reasonable cause to believe, from Whittaker’s language and manner, as he, Hinton, withdrew from the house, that Whittaker was following and advancing on him, intending to assault him, or do him some bodily harm in his retreat ; if Hinton fired with the intention of arresting Whittaker’s assault, the act could only be considered manslaughter, and not murder.

“ 3d. That if the jury believe from the testimony, that the prisoner, at the time of discharging his pistol, had reasonable grounds to believe that the deceased intended to inflict on him some serious bodily injury, and that deceased was in such a position that he might have carried his intention into effect, and acting under such apprehensions, the defendant gave the mortal wound, the act would be excusable, on the ground of self-defence.”

The first charge was given by the court, the second and third refused, which is assigned now, as error.

Without discussing the legal accuracy of the first charge, its being given, was certainly favorable to the prisoner. The second leaves out entirely, “sudden passion or impulse,” which is the necessary element of manslaughter, under our Code, and for that reason the court did not err in not giving it.

The objection to the third charge asked, is,^ that it is too loose and indefinite to convey to the jury a correct idea of the principle of self-defence, whether it be considered as an abstract proposition, or in reference to the facts in proof. The reasonable belief that Whittaker intended to inflict on him some serious bodily injury, must be founded in part upon some act of Whit-taker, (other than his merely being “ in such a position that he might have carried his intention into effect,”) showing that he, Whittaker, had the present intention to inflict the injury. Even then, to excuse or justify the defendant, the means used to repel the assault of Whittaker, and prevent the impending injury, must have been only such as were necessary under the circumstances. Suppose A. has reasonable grounds to believe, and does believe, that B. intends to kill him the first time they meet. They afterwards do meet, both armed, and near enough to put B. in a situation to carry out his intention. Now if B. makes no demonstration of then carrying out such intention, A. is not justified in killing him. And if he does make such demonstration, but with, means, and under circumstances of incapacity caused from personal debility, such as render it obviously unnecessary for the person assaulted to take his life, in order to protect himself from harm, then A. would not be justified is such unnecessary killing. The charge is evidently defective in not guarding these important points in the doctrine of self-defence.

This charge, had it been properly framed, would hardly have been applicable to the facts in proof. The defendant had put himself in the wrong, by his conduct towards the deceased and his wife, in their own house, and still further in the wrong, by refusing to go out of the house when requested by them. Whit-taker had a right to put him out of the house; he had a right to go along with him to the steps of the entrance, with his hand on his shoulder, and to tell him that he would make him go; and he had a right to take out his knife, for his defence, against a man armed with a pistol, who had shown his readiness to use his arms recklessly. ’The defendant, by his own conduct, had made all this necessary and proper on the part of Whittaker. What else was done which put him in a position to have the right to act on the offensive, by shooting the deceased the moment he, Hinton, left the steps, or while still on the gallery ? Was he' in danger of being cut with the knife ? There is no evidence that Hinton saw the knife, or acted with reference to any danger from the knife, when he did shoot. And there is not the slightest evidence, that Whittaker intended to assault Hinton with the knife. Eor the witness, who states that the knife was “ open or half open,” also states that he did not attempt to use it; that it was a common pocket-knife, and was in in his right hand, as his arm hung down by his side; that the deceased had his left hand on the defendant’s shoulder or back, walking behind him, and that when they reached the front gallery, Hinton turned, pushed Whittaker back, and fired and ran. There had nothing happened previously, to show that Whittaker intended to’ do more than put him out of the house; for he had repeatedly besought him, while shedding tears, to leave and go home ; and had been goaded into the resolution of putting him out of the house, only by the unreasonable replies of Hinton. Furthermore, it was shown, that Whittaker was extremely debilitated from drinking some time previously, and for that reason alone, it does not appear that it was necessary for Hinton’s defence, that he should resort at once to the extreme remedy of shooting.

Thus the facts in proof show, that Whittaker, while doing a lawful act in a lawful manner, was killed by Hinton; and there is not a fact proved, which tends to establish the contrary, or that Hinton had reasonable ground to regard Whittaker’s acts in any other light, than as the exercise of a lawful right, done in a lawful manner.

Hinton having placed himself in the wrong, in refusing to go out of the house until he got ready, was bound to submit to the force, reasonably necessary to put him out. His right to resist the force of Whittaker, would not be called into existence at all, until Whittaker used, or was in the act of using, or being then manifestly about using, more force than was necessary to put him out. And then Hinton would have the right to resist, but only to the extent, and by the use of the means, necessary to repel such excessive force so used or impending.

Such are the rules applicable to the facts of the case, and are very different from the third charge asked and refused. There was no part of the original charge of the court prejudicial to the defendant. Murder, in its different degrees, as well as manslaughter, were properly explained.

We cannot say that the facts do not warrant the jury in the conclusion, to. which, under the charge they must have arrived, that the act of killing Was done with express malice.

Judgment affirmed.