26 Tex. Ct. App. 274 | Tex. App. | 1888
This voluminous record contains fourteen bills of exception reserved by defendant to rulings of the court at the trial, and twenty-four assignments of error .submitted on this appeal as grounds for reversal of the judgment. Our conclusion as to the course necessary to be taken in the disposition of the case on this appeal renders it unnecessary to discuss but one or. more of these supposed errors, as
I. Appellant moved for a change of venue in the case, and based his motion upon the first ground named in the statute (Code Crim. Proc., art. 578); that is, that there existed against him so great a prejudice in the county that he could not obtain a fair and impartial trial. His application was controverted by the district attorney under the provisions of article 583, Code Criminal Procedure, and many witnesses were permitted to be-examined on both sides as to the existence or non existence of “prejudice” in the county. It is urgently insisted that such testimony was inadmissible and contravenes the obvious purpose and intent of article 583, which, it is contended, limits and restricts the matters to be investigated, .solely to the credibility and means of knowledge of the defendant’s compurgators in the application. In other words, that, if the credibility and means of knowledge of the compurgators are alone authorized to be attacked, that this can not be done by proof generally of the non existence of prejudice, and that in such a contest it is error to go into a general investigation as to the-existence and non existence of prejudice.
How, what was the sole issue presented by defendant’s application and the supporting affidavits of the compurgators? It was the existence or non existence of prejudice. Their means of knowledge upon this matter was attacked. To show that such prejudice did not exist manifestly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter. Under this issue as to “the means of knowledge ” of the compurgators, it has been more than once decided that the “defendant would have the right to prove the existence of the prejudice by any witness besides the affidavit of his compurgators; and, on the other hand, the State would have the right to prove that no such prejudice did in fact'exist. The supporting affiants could be thoroughly tested as to their means-of knowledge by either party.” (Davis v. The State, 19 Texas Ct. App., 201; Pierson v. The State, 21 Texas Ct. App., 14; Smith v. The State, Id., 277; Scott v. The State, 23 Texas Ct. App., 521; Henning v. The State, 24 Texas Ct. App., 315.)
II. In our opinion the most serious questions presented for our adjudication are those calling in question the sufficiency of and the correctness of the charge of the court.
One L. E. Riverton, alias Reinhard, was the main witness for the defendant, and he testified to his previous acquaintance with defendant, and the circumstances which brought about a game of “pin pool” between one Burbank and defendant, at the Commercial saloon, in Laredo, where the homicide occurred, between four and five o’clock on Monday morning, March 29, 1886. This game commenced about nine o’clock Sunday evening, and Riverton was asked by both parties to count the game; which he did. He says: “About one a. m. a stranger came in and sat down at the pin board; this was Douglas,
This is the testimony of the defendant’s main witness. It
III. Under our law a party has the right to defend himself against any assault or threatened assault made upon his person, calculated to inflict death or serious bodily injury. (Hunnicutt v. The State, 20 Texas Ct. App., 634) And it is not essential to his perfect right of self defense that the danger be real or in fact exist. It may be only apparent and not real. If it reasonably appear from the circumstances of the case that danger existed, the person threatened with such apparent danger has the same right to defend against it, and to the same extent, that he would have were the danger real. (Willson’s Crim. Stats., sec. 978; Tillery v. The State, 24 Texas Ct. App., 251.) This perfect right of self defense, however, may be destroyed entirely or abridged by the acts of the party. For, if a party by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he can not say that such killing was in his necessary self defense, but the killing will be imputed to malice express or implied by reason of the wrongful act which brought it about, or malice from which it was done. A person can not avail himself of a necessity which he has knowingly and wilfully brought upon himself. (Willson’s Crim. Stats., sec. 981; Allen v. The State, 24 Texas Ct. App., 216.)
But, whilst this is the rule as to a perfect right of self defense, such rule is limited by the intention of the party producing this necessity to take life. If his intention was not felonious, then the homicide which his necessity compelled will not be murder. For, as is well said by the supreme court of Missouri in Partlow’s case: “Indeed, the assertion of the doctrine that one who begins a quai'rel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder and can not avail himself of the doctrine of self defense, carries with it in its very bosom the inevitable corrollary that, if the quarrel be begun without a felonious purpose, the homicidal act will not be murder., To deny this obvious deduction is equivalent to the anomalous as
Row, if the party’s right of self defense, as to its extent— that is, whether perfect or imperfect—depends upon the intent with which he provoked the difficulty, and the intent is a fact to be found by the jury, then it seems clear that the charge of the court, in cases where the evidence creates any doubt as to the character of the intent, should always instruct the jury as to the distinction between the right of perfect and imperfect self defense as applicable to the particular act committed by the accused, and the extent of his liability when measured by it.
If, in the case in hand; Meuly did not provoke a difficulty with the purpose and intent to kill either Burbank or Douglas, but went to them, after getting his check and pistol from the valise, with the purpose and intent of settling the debt he owed Burbank, and an altercation ensued in'which they or either of them, by words accompanied by acts, or by acts alone, created a reasonable apprehension in his mind of death or serious bodily injury, and, acting under such reasonable apprehension and appearances of danger, he shot and killed Douglas, he believing the parties were acting together, or Douglas being the party making the demonstrations creating his apprehensions, then he would be justified on the ground of necessary self defense. (Bonnard v. The State, 25 Texas Ct. App., 174). When there are more assailants than one, the slayer has the right to act upon the hostile demonstrations of either one of them, and to kill either of them if it reasonably appeared to him that they were present acting together to take his life or do him serious bodily injury. (McLaughlin v. The State, 10 Texas Ct. App., 340; Cartwright v. The State, 16 Texas Ct. App., 473; Jones v. The State, 20 Texas Ct. App., 665; Bean v. The State, 25 Texas Ct. App., 347.)
Of course, in determining Meuly’s intent, the jury will take into consideration the fact of Meuly’s arming himself with a pistol, and also the language which he used as. tending to provoke the difficulty. Was the language calculated to provoke a difficulty? Upon approaching them, if his act was to throw his pistol down upon them, accompanied by the demand, “throw up your hands,” there can be no question as to the provocation
IV. As to manslaughter: ’ If from the words of Burbank and Douglas, accompanied by Burbank’s conduct in getting and putting his pistol conveniently for use on his person, Meuly really believed that they did not intend that he should leave the house until he paid the money, and he was thus placed in restraint of his liberty, and, knowing that he could not pay the money, and believing they would decline the check and still refuse to let him go, he shot in order to effect his release from the illegal restraint thus imposed, the offense would be manslaughter, and not murder. “An illegal attempt to restrain a man’s liberty, even under color of legal process, is such provocation as to reduce the offense to manslaughter. This holds where a man is injuriously restrained of his liberty, as where a creditor stood at the door of his debtor with a drawn sword to prevent him from escaping while he sent for a bailiff to arrest him.” (Whart. on Hom., sec. 447.) A citizen authorized to stand upon his individual rights may oppose force to force in the prevention of an attempted wrong, and when illegally restrained of his liberty may not only oppose force to force, but can increase that force even to the killing of his adversary, if necessary to prevent the attempted wrong. (Ross v. The State, 10 Texas Ct. App., 455; Willson’s Crim. Stats., sec. 976.)
Again, if Meuly, not intending to provoke a contest with intent to kill (Code Crim. Proc., art. 603), but under the influence of terror, produced by the acts and conduct of Burbank and Douglas, procured his pistol as a means of defense in case they should attack or restrain him upon his failure to pay the money before he could leave the house, and their acts, words and con
Because the charge of the court did not sufficiently present the law applicable to the theories legitimately arising upon the evidence adduced in behalf of the defendant, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.