27 Tex. Ct. App. 641 | Tex. App. | 1889
This appeal is from a judgment of conviction for murder of the second degree, with' the punishment assessed at imprisonment in the penitentiary for a term of eight years.
It is an undisputed, uncontroverted fact that this appellant and one Dick Springfield shot and killed the deceased, S. W. Allchin, with shot guns and pistols, as alleged in the indictment. This appellant does not deny but admits the fact, claiming that he was justifiable in so doing, or at most that his offense in so doing, under the facts developed on this trial, did not amount to murder, but was manslaughter. "No issue of manslaughter was submitted in the charge of the learned judge on the trial below, and the omission of the charge in this regard is urgently insisted upon as serious, radical error.
A brief resume of the facts is necessary in order to properly determine the merits of this objection to the charge. About a month before the day of this homicide, the deceased, Allchin, had killed one Chambers, a relative of this appellant and a deputy sheriff of Waller county. Appellant and Springfield were also deputy sheriffs. Out of the killing of Chambers by Allchin a bitter feud and hostility arose between the McDade or sheriff’s party and Allchin, which became of so serious a character that mutual friends of the two parties interfered to settle it, and finally succeeded in patching up or arranging an agreement or truce between them. By this agreement or truce it was, amongst other things, stipulated on behalf of All chin that he was not to go to Hempstead with his Winchester rifle in his hand, but was to carry it in his buggy, or holster or scabbard on his saddle when he was upon horseback, and that to carry it in
Evidence was adduced by appellant tending to show that he and Springfield went from Wheeler’s saloon to Haveman’s corner in the manner they did and armed as they were, for the purpose of arresting a fugitive deperado and murderer from Montgomery county, for whom they had a warrant of arrest, and who was reported to them as having been seen at or near Haveman’s corner just before they armed themselves and started by the alley way from Wheeler’s, and that their seeing Allchin when they reached the front of the Haveman corner upon the sidewalk was sudden and wholly unexpected.
Upon the above recited state of facts, it is streuously insisted that on account of the previous threats and acts of Allchin, the fact that he was thus suddenly seen carrying his gun in violation of his agreement, and which in itself was by said agreement a declaration of hostility, the appearances of danger to appellant and Springfield were such as were calculated to arouse a degree of anger, rage, sudden resentment or terror in persons of ordinary temper, sufficient to render their minds incapable of cool reflection, and that, having acted upon such appearances and from such impulses and 'passion, the issue of manslaughter was clearly raised, and should have been given in charge to the jury as a necessary part of the law of the case.
It was held at one time in Kentucky “that if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only security, he may kill that enemy whenever and wherever he gives him a chance, and there is no sign of relenting.” (Carico v. Com., and Phillips v. Com., Horrigan & Thompson’s Self Defenses, pp. 383-389.) But this doctrine has been overruled even in that State (Bohannon v. Com., Id., 395), and has never, so far as we are aware, been recognized as the law elsewhere. Such a doctrine would make the bare presence of an enemy an overt act justifying his destruction.
But, it is said, Allchin was not only guilty of a “declaration of hostility” by the manner in which he was carrying his gun, but, in addition thereto, he had made threats that he would kill the McDades or any of them he might get an opportunity to kill, on that very day. In Johnson v. The State, 27 Texas, 758, Judge Moore says: “In no case under the provisions of the Code, or out of it, if we were permitted to look elsewhere to
Under our statute with regard to threats as evidence (Penal Code, art. 608), “it is not practicable to fix on what the act manifesting the intention of the deceased to execute his threats shall be, but it must be some act reasonably calculated to induce the belief that the threatened attack has then commenced to be then executed, and not a mere act’ of preparation to execute the threats at some other period of time, either speedy or remote.” (Irwin v. The State, 43 Texas, 236; Lynch v. The State, 24 Texas Ct. App., 350; Brooks v. The State, Id., 274; Willson’s Crim. Stats., sec. 1053.)
We are of opinion, for the reasons above given, that the court did not err in declining to submit in the charge to the jury the issue of manslaughter as an issue in this case. And for the reasons above giVen, we are further of opinion that the court did not err in refusing to give the following special requested instruction asked in behalf of defendant, viz: “If you believe from the evidence that the defendant and the deceased, either in person or by parties representing them, made an agreement, the object of which was to prevent further hostilities and to preserve the peace, and that they agreed on certain conditions which were to be observed by both parties, the
“If the jury believe from the evidence that there was a contract between the deceased and the defendants, by the terms of which he was not to carry his Winchester in his hands, or otherwise than attached to his saddle in a scabbard, or in his buggy, and if they further believe that the said contract was made, and that deceased failed to conform to the same, and that complaint was made to the parties negotiating between the deceased and the defendants concerning such contract and breach thereof, and that said parties notified the deceased that again to carry his weapon in a manner not provided in said contract would be regarded as a breach thereof and a hostile demonstration, but that such was the understanding betAveen the parties; and if the jury believe that at the time of the killing the deceased with such knowledge on his part, and the defendants with such understanding on their part, found the deceased carrying his weapon in an attitude which was in violation of the contract, Avhat the parties regarded as a hostile demonstration, and came suddenly upon him, and thereupon shot and killed the deceased, then the defendants are not, in law, guilty, and you will acquit by your verdict.”
The charge of the court on self defense was, in our opinion, sufficient and pertinent to the facts in evidence, if, indeed, the issue of self defense could in any manner be said to have been
Upon “reasonable doubt” the court instructed the jury that “the defendant is presumed to be innocent until his guilt is established by the evidence to the satisfaction of the jury beyond a reasonable doubt.” This was specially excepted to because of the omission of the word “legal,” as used in the statute before the word “evidence.” (Code Crim. Proc., art. 727.) Whilst it has been uniformly held and recommended by the court that reasonable doubt should be charged in the exact language of the statute (Bramlette v. The State, 21 Texas Ct. App., 611), we have never held that a substantial compliance with the terms of the statute was not sufficient. (Willson’s Crim. Stats., 2426, 2427, 1071.) It is not perceived how the omission of the word “legal” before the word “evidence” could in any manner have misled the jury, or have proved prejudicial in any manner to the rights of the accused.
In the seventh assignment of error it is complained that “the court failed to instruct the jury that the declaration of Allchin to Felker that threats had been made against him by defendant was not any evidence that such threats were made, and that they should not consider such statement as a part of the evidence for that purpose, when it was expressly requested so to charge by defendant.” This evidence was drawn out by defendant upon the direct examination of his witness Felker, and neither the prosecution nor the court was responsible for it. If the defendant elicits testimony adverse to himself he must abide the consequences. (Speight v. The State, 1 Texas Ct. App., 551; Moore v. The State, 6 Id., 562.)
One of the grounds of motion for new trial was that the verdict of the jury was arrived at by unfair and illegal means, and was in fact decided by lot or means equivalent thereto. A juror
We have examined and discussed all the grounds mainly relied upon by able counsel for appellant, and besides have read re-read and maturely considered this voluminous record with a view of seeing whether in the conduct of the trial any proceedings were allowed likely to impair the fairness and impartiality of the /trial, and impeach the legality of the conviction; and we are constrained to say we have found none. ' The trial has been fair and impartial so far as we have been able to judge of it from the record, and, considered in the light of the record, we think appellant has every reason to congratulate himself upon the mildness of the punishment awarded him. The judgment is affirmed.
Affirmed.