Roach v. State

21 Tex. Ct. App. 249 | Tex. App. | 1886

White, Presiding Judge.

Appellant had insisted upon a trial. After the state had closed her testimony, which was near noon and the hour for adjournment for dinner, defendant’s counsel asked the court to adjourn so that they might have an opportunity to confer together as to the course to pursue, one of the counsel having just come into the case as the trial began, which request was refused by the court, and they then placed a witness on the stand, and occupied the time until the adjournment for dinner. When the court reconvened they presented a motion to the court for a leave to withdraw the announcement of ready for trial, upon the ground of mistake and surprise. It was claimed that, in announcing ready for trial, defendant and his counsel believed that the prosecution was on account of a difficulty between defendant and the same alleged injured party in September, 1884, in which difficulty defendant had shot his antagonist; that he had prepared to meet that charge, and had secured the attendance of his witnesses as to that matter, who would prove that, in said affair, he had acted alone in his necessary self defence; that he knew nothing about the transaction as” testified to in this case by the State’s witnesses, and, consequently, was not prepared to meet and refute the statements made by them, as he could and would do if time were allowed to secure his witnesses, who would establish for him a complete and satisfactory alibi. The court refused to grant the motion.

It seems that the motion was not offered to secure a statutory postponement or continuance on the grounds of surprise. (Code Crim. Proc., Art. 568.) It is, perhaps, not inappropriate to treat it as a motion of that character. On the motion for new trial, after conviction, the same grounds urged on this motion were again presented and relied on, supported, to some extent, by affidavits.

While it is true that the statutory motion for postponement or continuance, based on surprise, is confided to the sound discretion of the trial court, it is none the less well settled that, if the court improperly refuses the postponement occasioned by surprise at the testimony of a State’s witness, and on motion for new trial it is developed that the absent testimony was material, the motion should prevail. (Hood v. The State, 8 Texas Ct. App., 383; McDow v. The State, 10 Texas Ct. App., 98; Childs v. the State, Id., 183; Eldridge v. The State, 12 Texas Ct. App., 208.) The showing made by defendant on his motion for a new trial was clearly a strong equitable one and, under the very peculiar circumstances of the case, we are of opinion it was error to refuse the new trial. It was a very dark night, and the alleged injured party failed to identify defendant in the first instance, and when close to him, and only claims to have, identified him as defendant ran from him when he, the witness, emerged a second time from the house, after having secured his pistol. Defendant proposed to establish by his absent witnesses that, at the identical time thus testified to by the witness, he, defendant, was more than one hundred miles away in an adjoining county, where he was then residing.

There are one or more phases of self defence presented by the evidence, which the charge of the court wholly fails to notice. Evidently the theory of the prosecution was that defendant went to the house of Hefner at night, to waylay and murder Poindexter. When seen upon the porch or gallery by Poindexter, appellant made no attempt to do him violence. When Poindexter re-entered the house, got his pistol and came out, defendant ran. Poindexter pursued him some distance, when, he says, defendant turned and fired upon him.

If the defendant, intending to kill'Poindexter, went to the house where he resided with a purpose to waylay and murder him, and thus provoked the occasion which resulted in his having to shoot at Poindexter, then he could not claim that his act was in self defense. If, however, he was a mere trespasser upon the premises, and thus provoked the occasion which resulted in his shooting at Poindexter without any intent, on defendant’s part, to kill Poindexter or do him serious bodily injury, and without intent to commit any felony, in such case he would not be deprived wholly of the right of self defense, but such right would only be partial and imperfect, and such as would operate to reduce a homicide, had he committed a homicide, from murder to manslaughter, and when a homicide had not been committed, then his offense would be reduced from assault with intent to murder to aggravated assault. (Arto v. The State, 19 Texas Ct. App., 126; King v. The State, 13 Texas Ct. App., 277; Jones v. The State, 17 Texas Ct. App., 602.)

Again, the evidence shows that this appellant retreated at the second approach of Poindexter, and only shot after Poindexter had pursued him some distance. If defendant went upon the premises with intent to kill Poindexter, yet, if he abandoned such intention in good faith, and tried to escape, from or avoid his adversary, then, if he was pursued, his right of self defense revives. Of course, there must be a real and bona fide abandonment and withdrawal on his part; for, if there be not, then he will still continue to be regarded as the aggressor. (1 Whart. Crim. L., 8 ed. sec. 486.)

Opinion delivered April 28, 1886.

These phases of the case were not presented by the charge of the court. The judgment is reversed and the cause remanded.

Reversed and 'remanded.