No. 1630. | Tex. Crim. App. | Jun 19, 1912
Lead Opinion
Appellant was indicted for murder, and when tried be was convicted of murder in the second degree, and his punishment assessed at fifteen years confinement in the penitentiary.
This is a companion case of Condron v. State,
The grounds in the motion for new trial assail almost each and every paragraph of the charge of the court. No special charges were requested, and no exceptions reserved to the introduction of testimony.
1. The charge on murder in the second degree is assailed on the ground that it denies to defendant the presumption of innocence and the reasonable doubt on the testimony, in that the jury are instructed to convict defendant of murder in the second degree unless they believe that the evidence tends to reduce the offense to manslaughter. The paragraph criticised reads:
"If you believe from the evidence in this case beyond a reasonable doubt that in Throckmorton County, Texas, on or about the first day of October, A.D. 1910, W.J. Overcash, did unlawfully kill J.G. Spurlock by shooting him with a gun, but should not believe from the evidence beyond a reasonable doubt, that the killing was done with express malice (as hereinbefore defined) and unless you believe that the evidence under the law as given You in this charge tends to reduce the offense to manslaughter, or to justify, mitigate or excuse the defendant's act then from such unlawful and intentional killing, the law would imply malice, and the killing would be upon implied malice, and would be murder in the second degree, and if you so find beyond a reasonable doubt you will convict the defendant of murder of the second degree and assess his punishment at confinement in the *185 penitentiary for any number of years you may agree upon, provided it be for not less than five."
This paragraph is a virtual copy of the charge on murder in the second degree approved by this court in Miller v. State,
2. The court in his charge on manslaughter correctly defined that offense, and instructed the jury that if they believed beyond a reasonable doubt that the killing took place under such circumstances, (and not in his lawful self-defense) they would convict him of manslaughter. The criticism is again made that this shifts the burden to defendant to show that the killing was in self-defense. The court gave a full and complete charge on self-defense as applicable to the facts, and when we read the charge as a whole it is not subject to this criticism. This form of charge has been so frequently approved we hardly deem it necessary to cite the authorities, but see Clark v. State,
"You are further instructed that the reasonable doubt also applies between The different offenses comprised in the in indictment; so if you find the defendant guilty, and have a reasonable doubt under the evidence as to what offense he has been guilty of, if any, you will resolve such doubt in favor of the defendant, and find him guilty of the lesser and lower offense as between such offenses as you may be in doubt concerning.
"The defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt of any offense comprised in the indictment, you will acquit the defendant."
3. In the seventh ground of the motion for new trial it is insisted That the court erred in the following paragraph of his charge: "If you believe from the evidence under the foregoing charges of the court upon the law of self-defense, that the defendant, or Condron, was justified in firing the shot that killed the deceased Spurlock, if any, then you are instructed that the subsequent shots fired by the defendant, if any, are immaterial, and that the defendant had the right to continue to fire so long as danger, real or apparent, considered from the defendant's standpoint, continued to exist." Under the evidence in this case this charge was peculiarly applicable, and it would perhaps have been error not to have given it. The evidence would show that the fatal shot was the first one fired by appellant, and it further appearing That additional shots were fired while deceased was apparently retreating, if this charge had not been given, appellant perhaps could have complained that the subsequent shots might have had weight with the jury in making up their verdict. (Branch's Crim. Law, section 452.) All the facts and circumstances which are claimed or would have justified appellant are testified to as occurring prior to the first shot by him, and this charge is as favorable as be could have requested. The motion for a new trial as a whole is a criticism of the different paragraphs of the charge of the court insisting that in each of them the burden of proof is shifted; that defendant is denied the presumption of innocence and of reasonable doubt as to the different issues presented. We do not deem it necessary to fake up and discuss each of such assignments, for it would be but a repetition, and we do not think when the charge is read as a whole such criticisms have any merit. To fake one isolated sentence, such construction might be given to that sentence, but take the connection in which such sentence is given, and the charge in full, it does not appear that appellant has been denied the reasonable doubt as to his innocence, nor as between the degrees of the offense. The charge is a virtual copy of the charge *187 in the case of Miller v. State, 32 Tex.Crim. Rep., and which charge is copied in that volume of the reports, and which was pronounced by Judge Hurt as an admirable application of the law in this character of case.
We are cited to the case of Owen v. State,
Paragraph nineteen did not limit appellant's rights to the grounds therein stated, but this with the other paragraphs presented every phase of the law as applicable to his defense, and paragraph nineteen, when read in connection with paragraph thirty-two, where nineteen is applied, presents the question both from the standpoint of actual and apparent danger. In other paragraphs the court charged the jury:
"If you believe from the evidence that the defendant, W.J. *188 Overcash, did kill the deceased at the time, place and in the manner charged in this indictment, but should further believe from the evidence that at the time W.J. Overcash fired with a shotgun, the first shot fired by him, if you believe be fired any shot, that the sheriff or his deputy were attempting to use upon him or A.O. Condron, a deadly weapon, or by some act done by said Spurlock or Nichols at the time, reasonably indicated to the defendant and created in the mind of the defendant, a reasonable expectation or fear, that they were or either of them was, about to make an unlawful attack upon the defendant, or upon A.O. Condron, with a deadly weapon calculated to produce death or serious bodily injury, then it would be presumed from such acts that they intended to make use of such weapon to kill the defendant, or said Condron, or to inflict serious bodily injury upon him, or them, and you will in such case, if you so believe, acquit the defendant as having acted in self-defense, or in defense of another.
"If the acts of Spurlock or Nichols were such as to justify the defendant in killing Spurlock, under the law of self-defense, as given you in charge, then neither the defendant nor Condron under the law were required to retreat in order to avoid the necessity of killing the deceased.
"If you believe from the evidence that the deceased Spurlock and L.W. Nichols when they appeared in sight of the defendant before the door of his grain store, by some act done by them or either of them, indicated a present purpose and an immediate intention to use upon the defendant or O.A. Condron a weapon or weapons which might probably cause death or serious bodily injury to either the defendant or O.A. Condron, or if the acts of said Spurlock or Nichols, either when taken alone or in connection with all the other facts and circumstances in evidence, reasonably so appeared to the defendant at the time, from his standpoint, and said acts of the deceased or Nichols at the time were reasonably calculated to create in the mind of the defendant, and did create in his mind, the reasonable expectation or fear of death, or serious bodily injury to him or Condron, and if you find then and there, the defendant, moved by such reasonable expectation or fear (if be was so moved) of death or serious bodily injury, killed the said Spurlock, then the killing was under the law justified as done in his lawful self-defense, or in defense of another, and you will acquit him, if you so believe or have a reasonable doubt thereof, even though the danger was not actual but apparently so; provided the danger reasonably appeared to the defendant, under all the facts and circumstances at The time, to be real or actual, viewed from the defendant's standpoint."
After carefully reviewing each assignment of error, and reading the charge, we are of the opinion that the trial judge very aptly and correctly applied the law to the evidence in this case, and there is no error which would call for a reversal of the case. Even if there were some verbal inaccuracies, yet the evidence in this case would show that *189 appellant was guilty of murder in the second degree or acted in his necessary self-defense, and the court fairly submitted that issue.
The judgment is affirmed.
Affirmed.
Addendum
Appellant has filed an able brief in connection with his motion for rehearing, and cites us to many cases. We did not take up and analyze each decision cited by him in the original opinion. Appellant, while he does not dispute that the charge given in this case is almost an exact copy of the charge given in the Miller case, cited in the original opinion, yet he insists that the opinion in that case and the opinion in this case, and cases cited herein, are in conflict with some other decisions of this court. He cites us to the cases of Smith v. State, 9 Texas Crim. App., 150; Robertson v. State, 9 Texas Crim. App., 209; Blocker v. State, 9 Texas Crim. App., 279; Wallace v. State, 9 Texas Crim. App., 299. By reference to all those cases it will be seen that the court was criticising the definition of reasonable doubt as given. In this case the court did not give any definition of reasonable doubt, but charged the jury: "The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt of any offense comprised in the indictment, you will acquit The defendant." This charge is in the language of the Code of Criminal Procedure (article 785) and is in conformity with the decisions above cited by him. He also refers us to the case of Comegys v. State, 62 Tex.Crim. Rep., 137 S.W., 349" court="Tex. Crim. App." date_filed="1911-05-03" href="https://app.midpage.ai/document/comegys-v-state-4996083?utm_source=webapp" opinion_id="4996083">137 S.W. Rep., 349, an opinion rendered by the writer of this opinion. In this case in applying the law of reasonable doubt to the whole case the language appended to it in the Comegys case is not used by the court, but the law is given as laid down by the Code, which all the decisions say is the better practice.
We are next referred to the Shamberger case, 6 S.W., 540" court="Tex. App." date_filed="1887-12-14" href="https://app.midpage.ai/document/presley-v-state-4907251?utm_source=webapp" opinion_id="4907251">6 S.W. Rep., 540, in which the court said the charge in that case required the jury to believe that the defendant was not guilty; that be did not kill the deceased, but that deceased killed herself. If the charge did it was erroneous as held by the court. In this case the burden is not placed on defendant to prove any fact, but the court specifically instructed the jury: "The burden rests upon the State to establish the guilt of the defendant by legal evidence beyond a reasonable doubt; and if after considering all of the evidence before you, you have a reasonable doubt of his guilt, you will acquit." This war given immediately following the charge on self-defense, copied in the original opinion, and in addition to the usual charge on presumption of innocence and reasonable doubt which was also given.
We are also cited to the case of Maloney v. State, 57 Texas Crim. *190 Rep., 425, 125 S.W., 36" court="Tex. Crim. App." date_filed="1909-12-15" href="https://app.midpage.ai/document/maloney-v-state-3919854?utm_source=webapp" opinion_id="3919854">125 S.W. Rep., 36, in which the court held that as the charge of the court required the jury to find affirmatively that "defendant was acting in a peaceful manner" before they would be authorized to acquit. By reading the charge copied in the original opinion, that when the court applied the law of self-defense to the case he instructed the jury not only "if they believed from the evidence" the given state of facts but in said paragraph also instructed them or "you have a reasonable doubt thereof." This did not shift the burden of proof. All the other cases cited by appellant will be found cited in the case of Harris v. State, 55 Tex.Crim. Rep., 117 S.W., 839" court="Tex. Crim. App." date_filed="1909-03-10" href="https://app.midpage.ai/document/harris-v-state-3967781?utm_source=webapp" opinion_id="3967781">117 S.W. Rep., 839. We do not deem it necessary to discuss each of them, but by reference to each of them it will be seen that in each of the cases it was where the court required the jury to affirmatively find that the defendant on trial did or did not do a specific thing before he would be entitled to an acquittal, as in the Harris case the jury was instructed that before they would be authorized to acquit they must find that Harris "did not make an assault and did not put in fear, etc." The charge in this case is not subject to such criticism as will be seen by reading the charge copied in the original opinion. With the rule laid down in those cases that the charge on self-defense should not require it be affirmatively proven that the defendant did not do a certain act, before he would be entitled to an acquittal, we agree, and the charge in this case is in conformity with those decisions when read as a whole. As announcing the correct rule this court held in Powell v. State, 28 Texas Crim. App., 393: "With respect to the charge on threats and self-defense, the objection is urged that it required the jury to believe the facts existed which constituted self-defense before they could acquit defendant, whereas the law is that if they entertained a reasonable doubt of the existence of such facts they should acquit him. In this case the court charged the rule of reasonable doubt generally making it applicable to the whole case, and under repeated decisions of this court this was sufficient." This was an opinion by Judge Willson, in which he cited the opinion of Judge Hurt in the McCullough case, 23 Texas Crim. App., 636, in which file same rule was laid down and Ashlock v. State, 16 Texas Crim. App., 13.
In the case of Edens v. State, 41 Tex.Crim. Rep., where in the charge of the court on self-defense, the court said: "Appellant in his tenth bill of exceptions complains of the charge because said charge required the jury to find affirmatively from the evidence the existence of the facts necessary to constitute self-defense, and contends the court should have charged that if they believed said facts existed, or had a reasonable doubt thereof, they would find defendant not guilty. It is not necessary under the law of this State to place the charge of reasonable doubt at the end of each charge. We think the court's charge wherein be tells the jury `Defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and in case of a reasonable doubt in your Minds as to defendant's *191
guilt you will acquit him, and say by your verdict not guilty,' is a sufficient application of the law of reasonable doubt to the different phases of the evidence." The charge in that case was not near so favorable to the defendant as is the court's charge in this case. (See also Carroll v. State,
As to the only other contention of appellant in his motion for rehearing, that the doctrine of reasonable doubt should have also been included in the paragraph of the charge on murder in the second degree, the paragraph on manslaughter, etc., be cites us no authority, and the decisions of this court are all against his contention. It has always been held that where the court in his charge instructs the jury as to reasonable doubt as to degrees submitted, this is sufficient, some cases holding that where a charge is requested, a failure to so charge will not present reversible error. (Frizzell v. State, 30 Tex.Crim. Rep.; Hall v. State, 28 Texas Crim. App., 146; Green v. State,
It has not been infrequently urged that this court should require that each paragraph of the court's charge specially apply the doctrine of reasonable doubt, but this the court has always declined to do, and has always held that when the charge as a whole applies to the doctrine of reasonable doubt as between degrees in a homicide case and then applies the reasonable doubt to the whole case, this will be sufficient. As said in some of the cases it might be a commendable practice for the trial courts to do so, but if not done and the charge is so drawn that the jury is informed that the burden is upon the State to prove its case beyond a reasonable doubt, and if they have a reasonable doubt as to defendant's guilt, and have a reasonable doubt as to the defensive theories, this court will not reverse the case. The part of the charge copied in the original opinion demonstrates that was done in this case.
The motion for rehearing is overruled.
Overruled.
Davidson, Presiding Judge, not sitting.