Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- Brooks
Where in a prosecution for murder, there was evidence that the homicide resulted from an attempt on the part of officers of the law to execute a writ of possession against the parents of defendant and that he was a minor living with them at the time, and that he had entered into a conspiracy with them to resist said officers, there was no error in admitting in evidence all the proceedings in connection with and including the judgment in the original suit on which the said writ was based, as also the order of sale and said writ itself; as a stranger even would be bound by the said judgment and writ, and said writ not being functus officio.
2.—Same—Res Gestae—Evidence—Official Mission of Deceased—Resisting Officer.
In a prosecution for murder, which grew out of an attempt of officers of the law to execute a writ of possession against the parents of defendant, and resulted in the killing of one of the officers, it was competent for the State to show the mission of the said officers in going to the place which was held by the said parties and that their purpose was to execute said writ; and what transpired just before the homicide between the owner of the premises, father of defendant, and the said officers out in the yard, in view of defendant, who must have known the officer‘s official mission from the facts and surroundings, was part of the res gestæ of the transaction and admissible in evidence, especially when no opportunity was afforded said officer to disclose his purpose before he was shot down by defendant, and under such circumstances defendant could not claim self-defense or defense of his mother in resisting an officer.
3.—Same—Common Law Rule—Husband and Wife—Conspiracy—Statutory Law—Evidence.
While under the rule at common law prosecution for conspiracy is not maintainable against the husband and wife, unless some third person, in connection with them, join in the conspiracy—which rule seems to be applicable to a conspiracy pure and simple and not to a consummated act in which the conspiracy may be merged—yet by virtue of the statutes of Texas such rule is abrogated, and husband and wife may consрire, without the intervention of a third person,
4.—Same—Evidence—Acts and Declarations of Co-Conspirators.
The rule laid down by this court in the case of Cox v. State, 8 Texas Crim. App., 254: that when the proof shows two persons were acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators; and that the previous acts and declarations of each or any such principal offender, in pursuance of the agreed plan, and tending to throw light upon it, or the motive or intent with which it was committed is and should be received as legal evidence against each and all, whether indicted, prosecuted and tried jointly or separately, not only still obtains, but has been extended in the light of more recent decisions, which hold that on a trial for murder where a conspiracy is shown, the acts and declarations of co-conspirators are admissible to prove the common design, рurpose and intent of all the conspirators, whether such acts, etc., were made before or after the formation of the conspiracy, or whether the same were made before the defendant on trial entered into the conspiracy.
5.—Same—Case Stated Under Above Rule.
Where on a trial of defendant for murder, the evidence showed that he and his parents were principals therein, inasmuch as all three of them were on the ground at the time the homicide was committed and participated therein, there was no error in admitting in evidence the acts and declarations of defendant‘s parents made in the absence of defendant, with reference to certain legal proceedings by which they were dispossessed of their property by the officers of the law and which occurred some time before the homicide, and in which they threatened that they would not peacefully submit to such proceeding again; the evidence further showing that defendant‘s parents had repossessed themselves of said property and that he acted with them when said officers came to dispossess defendant‘s parents a second time and he killed one of said officers; especially where the court in his chargе limited the effect of this testimony to the necessity of prior proof of a conspiracy.
6.—Same—Acts and Declarations of Co-Conspirators After Conspiracy is Formed.
Where in a trial for murder, the theory of the State was that defendant had entered into a conspiracy with his father and mother to resist the execution of a writ of possession against his parents, and there was enough testimony to go to the jury that he did enter into such conspiracy, there was no error in admitting testimony which involved the procuring of arms and ammunition by his father after the latter moved back on the premises from which he had been removed by virtue of said writ, and after he had been joined there by the defendant; and also the testimony regarding the barricade of the doors and windows of the house with sacks of wheat, these acts being subsequent to the formation of the consiracy and in furtherance thereof; especially where the court limited such testimony with reference to the rule in conspiracy, more favorably than the law required.
7.—Same—Charge of Court—Third Parties Not Concerned.
Where in a trial for murder the theory of the State was that defendant had entered into a conspiracy with his parents to resist the officers in the execution of a writ of possession, and there wаs no attempt on the part of certain third parties, who were interested in the property subject to said writ, to retake possession thereof, after defendant and his parents had taken possession thereof, and there was evidence that defendant and his codefendants knew at the time of the homicide that it was the officers of the law who were attempting to dispossess them, the court was not required to charge with reference to a conspiracy of defendants to thwart any attempt on part of such third parties to retake possession of said property.
8.—Same—Evidence—Rebuttal.
Where in a trial for murder in which defendant was charged with a conspiracy to resist officers of the law in the executiton of a writ of possession, he had introduced testimony that his co-conspirators had had trouble with certain third parties who were interested in the property subject to said writ and not with the officers, one of whom was killed by defendant, it was admissible for the State to show by way of rebuttal that said parties and codefendants had amicable relations, and that all the said third parties said and did suggesting violence was with reference to an antecedent attempt by them to get possession of said propеrty.
9.—Same—Advice of Counsel—Judgment Conclusive Against Homestead.
There was no error to exclude the testimony for defense with reference to the advice of counsel, to the effect that the property subject to the writ of possession and concerning which the trouble arose that resulted in the homicide was homestead, as that issue was withdrawn from the jury by the court, and correctly so, as the judgment upon which the said writ was based eliminated that question in a trial of defendant for the murder of one of the officers who attempted to execute said writ against defendant‘s parents, who were charged as codefendants in a conspiracy for resisting said officer and slaying him.
10.—Same—Bill of Exceptions Contradicted by the Record.
Where the record showed that all the testimony of defendant‘s witness with reference to advice of counsel which was admissible and which he contended for was in fact admitted, the bill of exceptions fails to raise an issue.
11.—Same—Fact Case—Charges Favorable to Defendant.
See opinion for evidence held to sustain a conviction of defendant for entering into a conspiracy with his parents to resist the officers of the law in the execution of a writ of possession and to slay them if necessary, and that defendant slew one of said officers pursuant to such conspiraсy, and not in the defense of his mother, although the court submitted a charge on self-defense in behalf of defendant‘s defense of his mother, and also a charge on manslaughter, both of which were probably more favorable than the evidence called for.
12.—Same—Requested Charge—Supplied Defect of Main Charge.
A charge of the court, in a trial of defendant for murder of an officer in the lawful discharge of his duty in the execution of a writ of possession against the defendant‘s parents who are charged as codefendants and co-conspirators, which in effect told the jury if defendant entered into an agreement or conspiracy with either his father or his mother to kill the officers in resistance of the writ of possession, then they could consider the acts and declarations of said father against defendant, while subject to criticism, could not injuriously affect defendant, as the conclusion is irresistible that if he entered into a conspiracy with one of them he did so with both of his parents; besides the special instruction of defendant which was given, sufficiently guarded against such construction of the main charge.
13.—Same—Murder in The Second Degree—Charge of Court.
See opinion for charge on murder in the second degree which in connection with other portions of the court‘s charge, and those requested by the defendant and submitted was sufficient. Reviewing Harrison v. State, 83 S. W. Rep., 699; Ray v. State, 46 Texas Crim. Rep., 511, 81 S. W. Rep., 737; Spivey v. State, 45 Texas Crim. Rep., 496, 77 S. W. Rep., 444; Pollard v. State, 45 Texas Crim. Rep., 121, 73 S. W. Rep., 953.
14.—Same—Reasonable Doubt.
See opinion holding that the charge on reasonable doubt was sufficiently presented by the court.
The opinion states the case.
HENDERSON, Judge.—Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.
A branch of this case to wit: Catherine Smith v. State, 46 Texas Crim. Rep., 267; 10 Texas Ct. Rep., 984, was before this court at a former term. The facts on that trial were in a general way the same as on the present trial. Since then, the venue has been removed to McLennan County, and the appeal was prosecuted from a conviction in that county. The facts show that T. E. Smith and Catherine Smith were husband and wife, and Addison Smith (appellant) was their son, being a young man about grown. The Smiths were owners of a farm in Bell County, some twelve or thirteen miles from Belton. It appears that Smith became indebted some time prior to the homicide, and executed a mortgage or deed of trust on said premises. This mortgage or trustee deed was foreclosed. Pending this, some other instruments relating to a stay of sale were executed between the parties, and the sale was рostponed for some time. The judgment appears to have been rendered in favor of the Union Central Life Insurance Company v. T. E. Smith and wife; but this was subsequently transferred to one J. M. Brooker. There is some evidence that it was afterwards transferred to Pendleton and Brewster, and by them transferred to Hall. However, these matters are immaterial in the disposition of the case. The land was finally sold by an order of sale under the judgment. At the execution sale Pendleton and the Brewsters became the purchasers. On July 17th, a writ of possession was issued to put the purchasers in possession of said premises. This writ appears to have been executed, at least in part, on the 20th of July. However, a day or two after the partial execution of the writ and the removal of T. E. and Catherine Smith from the premises, they returned and regained possession. Before the return day of the writ, and while it was still in the hands of the officers, they were called on to further execute the writ by ousting the Smiths from possession. The officers attempted this on August 6th, and while on the premises, in endeavoring to execute the writ, according to the State‘s theory, the homicide occurred. According to the evidence offered by the State, it is insisted that when T. E. Smith and Catherine Smith returned to the premises and regained actual possession thereof, they conspired together to resist the officers from regaining possession. There is some evidence tending to show they had advice from counsel that the writ of possession was functus officio; and that the same could not
We believe it was competent for the State to introduce, as was done, all the proceedings in connection with and including the judgment in the case of the Union Central Life Insurance Co. v. T. E. Smith and Catherine Smith, upon which the order of sale and writ of possession was issued, including the sale, order of sale and the writ of possession. It is true that appellant was not a party to said judgment or proceedings, but his mother and father werе: he being a minor and living with them. Even as a stranger he would be bound by the judgment and could not resist the execution of the writ. In Catherine Smith v. State, supra, it was held that the writ was not functus officio, but the return day not having expired, and the same being still in the hands of the officer, it could be further executed. Murfree on Sheriffs, sec. 1021, citing Jackson v. Hawley, 11 Wend., 182; Crockett on Sheriffs, sec. 575; Freeman on Executions, sec. 474-5-6-7.
In this connection it is also strongly insisted by appellant that what transpired between T. E. Smith and the officers out in the yard when Smith left the house, just prior to the homicide, with reference to the writ of possession, and the fact that Grubbs had the writ and had come to execute it, should not have been introduced against appellant, because he was not present, and the statements of the officers to his father could not affect him. We believe this was a part of the res gestæ of the transaction, and T. E. Smith himself being the owner of the premises, it was only necessary to exhibit the writ to him. At any rate, it is shown by appellant‘s own testimony that he knew or had reason to believe that the parties in the yard, Sparks and Grubbs, were officers. There is no suggestion that he believed they were Pendleton or the Brewsters who had come to take possession by violence. Appellant was watching them from the bed through thе window. It is further shown by the witness that as soon as Grubbs came into the house, immediately the firing began. According to appellant‘s own testimony there could have been no opportunity for Grubbs to have declared his
On the appeal of Catherine Smith v. State, 46 Texas Crim. Rep., 267; 10 Texas Ct. Rep., 984, we held that a conspiracy to commit murder could be formed between husband and wife. The question was not particularly discussed, and no authorities were cited in support of the proposition. We understand it to be now insisted that the rulе at common law was different; that is, husband and wife could not be coconspirators; and that there is nothing in our statute to change it. An examination of the common law text writers discloses that prosecution for conspiracy is not maintainable against the husband and wife only, because they are esteemed as one person in law, and are presumed to have but one will. 1 Russell on Crimes, p. 39; 2 Wharton Crim. Law, 1392; Peo. v. Miller, 82 Cal., 107; State v. Clark et al. (Del.), 33 Atl., 310. However, these same common law authorities assert the principle that if some third person, in connection with the husband and wife, join in the conspiracy, the rule above mentioned does not apply. So that in this case, if it be conceded that the common law rule is in vogue here, then the fact that appellant was a member of the conspiracy, together with his father and mother, would take this case out of the common law rule. We would observe, however, with reference
Appellant reserved an exception to the action of the court permitting the witness J. E. Sparks to testify that on Saturday evening, July 18, 1903, while moving the Smiths out the first time, in the presence of several others, he had a conversation with T. E. Smith, who remarked, that it looked like we were in a big hurry to-day moving him. He said it was the worst thing that ever happened to him. He said before he would go through such a thing again, he would get his winchester and shoot until he killed somebody; sаid he had three boys and he was going to teach them to do the same thing if ever anything of that sort came up with them. Grubbs remarked, “You ought not to blame the officers.” To which Smith replied, “By God, they ought not to put themselves up as targets then.” Also in the same bill appellant reserved exception to the testimony of Pendleton, who testified that during the time of the execution of the first writ, or a day before that,
There is certain other testimony, which involves the procuring of arms and ammunition by T. E. Smith, after he had moved back on the premises, and after he had been joined there by his son (appellant). And also the testimony regarding the barricade of the doors and windows of the house with sacks of wheat. These acts, in our opinion, were subsequent to the formation of the conspiracy, and were unquestionably in furtherance thereof, and were admissible against appellant, provided he became a party to the conspiracy to resist the officers in attempting to execute the writ of possession. This simply involves the question whether or not, there was enough testimony to go to the jury as to whether Addison Smith (appellant) entered into the conspiracy. We think the testimony is abundant to the effect that both T. E. Smith and his wife, when they went back on the premises, had determined to hold possession thereof against any attempt of the officers to regain it, under the writ which they had been advised was functus officio, and could not be again executed. True, there is testimony tending to show that what they did was with reference with resisting an anticipated attack on the part of Pendleton and the Brewsters. Still this theory did not preclude the State from insisting on the other theory, provided there was evidence to support it. As stated, there could be no question that they procured advice of counsel to the effect, that the officers could not re-execute the writ of possession; that it was functus officio. T. E. Smith and his wife knew the officers, and undoubtedly knew Sparks and Grubbs when they came. They saw they were prepared to remove them, having brought wagons for that purpose. Smith went out, as is testified, for the purpose of parleying and protesting against the removal. Both Catherine Smith and appellant were in view of what was transpiring in the yard. Not only so, but they were prepared to resist any intrusion into the house. Appellant was lying on the bed with a shotgun by his side, looking at what was transpiring in the yard. Mrs. Smith was looking through the screendoor at them. She also had a gun conveniently near on the table. She knew who the parties were in the yard, and knew that it was not Pendleton and the Brewsters. If appellant entertained any doubt as to whom these parties were he should have inquired of his mother, as a prudent, law-abiding man. He states himself that he knew they were officers, and was bound by the tangible facts before him to take notice of their purpose. It is true that throughout the record this defendant is remarkably reticent. In his testimony he disavows knowledge of the most obvious facts transpiring around him. But there are some things so plain as to challenge denial or contradiction, notwithstanding his reticence he will be held to take notice of those physical facts and surroundings which declared the purpose of his father and mother to resist the ejection by the officers at all hazards. There is enough in this record to charge him with knowledge of the pending conspiracy and its
In this connection appellant contends that the court should have instructed the jury with reference to the conspiracy to thwart any attempt on the part of Pendleton and the Brewsters to retake possession. There was some testimony admitted on this line, but there was no attempt on their part to retake possession, and, as stated, the parties knew at the time of the homicide that it was not Pendleton or the Brewsters that went there for the purpose of securing possession, but officers of the law. We do not think the court was required to charge further on this subjet than was done.
Some objection is urged to the admission of conversations detailed by Pendleton and the Brewsters, which they had with T. E. Smith on or about July 6th, in which they manifested an amicable disposition. We think it was proper, under the circumstances of this case, to bring forward in testimony all the salient facts attending the service of the first writ of possession, and matters even which antedated that. As stated by the court in his explanation, there was testimony introduced by appellant to the effect that Smith and his wife were having trouble with Pendleton and the Brewsters, and that all they said and did suggesting violence was with reference to an antecedent attempt to get possession by them. The court further states that he believes the testimony of these conversations and amicable talks was admissible in rebuttal of this character of evidence. In this we concur.
There is a long bill of exceptions (number 14) with reference to the testimony, and refusal to permit certain testimony of the witness A. J. Harris. We believe that the court in his explanation properly eliminated all the testimony relating to the designation of the homestead; that all of that portion of the testimony was withdrawn from the consideration of the jury, and they were instructed not to consider the same. We do not believe the question of homestead, under the circumstances of this case, cuts any figure. So far as this testimony is concerned, both T. E. Smith and his wife, were parties to the judgment, and whatever rights they may have formerly had with reference to any homestead were adjudged in the decree. They were estopped to deny the same.
Bill number 15 is also quite lengthy and is reserved to what appellant was not permitted to prove by witness Harris. We are not clear as to the purpose of the bill, but taking the explanation of the court, in connection therewith, it occurs to us that all of the testimony that was really admissible, so far as the witness Harris was concerned, he was permitted to state. Harris testified, according to the court‘s explanation, that he advised T. E. Smith, after he had moved back upon the premises that the officers would not and could not execute that writ (meaning the writ of possession) the second time, after it was fully executed. The same witness also testified that on the afternoon before the killing, in a conversation with said Smith over the phone,—Smith being in Temple and witness in Belton,—he told witness in regard to the sheriff coming out to put them out of possession; that he did not think the sheriff would undertake it. Whatever benefit appellant was entitled to from the advice of Harris, it seems the court permitted him to prove. It will be seen, however, that while Harris was disposed to advise his client that the officers would not undertake to re-execute said writ, he was careful not to advise them that they could resist the officers.
Appellant urgently contends that no conspiracy was shown on his part to resist the officers if they attempted to take possession, or that in order to prevent them that he with his codefendants had determined to slay the officers; and that the State‘s case is not made out as against this appellant. It will be noted in this connection that the court, besides giving the charge on manslaughter, gave a charge on self-defense, which substantially told the jury if they believed Addison Smith killed deceased, but at the time deceased was making an attack on Mrs. Catherine Smith, which caused defendant to have a reasonable expectation or fear of death or serious bodily injury to the said Mrs. Catherine Smith, and acting under such reasonable expectation or fear he killed deceased, they should acquit him. Now this charge was given in favor of appellant regardless of any conspiracy. It was tatamount to telling the jury that although they might believe a conspiracy had been formed to resist the officers in taking possession of said premises, yet, if deceased in the first instance made an attack on Catherine Smith, which caused defendant to apprehend death or serious bodily injury to her, he would have the right to slay him. The jury evidently did not believe in this theory, and they refused to believe it notwithstanding the plausible account given of the homicide by appellant. He testified on this line: “I was lying across the bed with my head near the window, and could see out where they were, plainly. After Mr. Saunders got in his buggy and I saw my father and the two men standing there talking, I didn‘t notice them for a moment or two, and then my attention was attracted by their movements. I noticed that they had moved up closer to the house, and my father seemed to be trying to come to the house, and the two men closed upon him, and he folded his arms and moved this way and that way towards the house, and they would get between him and the house. When I noticed this, I think I raised up on my elbow
In order to understand this testimony there are certain other facts necessary to be taken into consideration. Deceased did not draw his pistol; it was found on his left side in the waistband of his pants, under his vest, after he was killed. The gun that was fired was the winchester rifle that Mrs. Smith and deceased were struggling over. It was also proven by one or two witnesses that Mrs. Smith exclaimed, shortly after the shooting, either before or at the time she came out on the gallery, “Didn‘t I tell you I would fight for my home?” It was also shown that with her gun in hand she made Sheriff Sparks leave the
Affirmed.
BROOKS, Judge.—I concur in the affirmance. However, I do not agree with some of the views expressed by the writer of the opinion, wherein an attempt is made to draw a distinction between the law of principals and the law of conspirators. My views on this question were thoroughly discussed in Catherine Smith v. State, 46 Texas Crim. Rep., 267; 10 Texas Ct. Rep., 984. I endorse the decisions therein cited.
ON REHEARING.
November 1, 1905.
HENDERSON, Judge.—The judgment was affirmed at the Austin term, and now comes before us on motion for rehearing.
In the original opinion we discussed at length the doctrine of conspiracy, involving the charge of the court and the admission of testimony and it is not deemed necessary to again review that question. How-
Now, we understand from the opinion in said case, that in proving a conspiracy to commit a crime, proof that two parties acted as principals in the commission of said crime, furnishes proof of the common intent to do that crime. If there is testimony tending to show that a
Appellant objected to the following charge, and insists on a reversal on that account: “If you believe defendant entered into a conspiracy with T. E. Smith and Catherine Smith, or either of them, etc., then you will consider the acts and declarations of T. E. Smith, but can consider them only for the purpose of illustrating the motive, purpose and intent of the parties, forming the conspiracy, if you conclude from the other evidence in the case, that such a conspiracy was in fact formed. You are further charged that unless you find beyond a reasonable doubt that the conspiracy was formed, and that Addison Smith (defendant) was a party thereto, then you will exclude from your consideration
Again in his motion for rehearing, appellant calls our attention to the following charge: “If you believe from the evidence beyond a reasonable doubt that the defendant, either alone or acting with others, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion, aroused without an adequate cause, and with intent to kill, did shoot with a gun, and thereby kill J. B. Grubbs, as charged in the indictment, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period not less than five years.” It is insisted that this charge does not even tell the jury that the act must have been unlawful, and omitted to tell them that it must have been done with implied malice. That is, it simply instructs the jury, if appellant in a sudden transport of passion, aroused without an adequate cause, with intent to kill, did shoot and kill deceased, he would be guilty of murder in the second degree. It is urged that this definition is entirely consistent with a lawful killing in self-defense. In this regard we are cited to a number of authorities, which are invoked to sustain appellant‘s contention. In Harrison v. State, 83 S. W. Rep., 703, there was no charge on manslaughter and adequate cause was nowhere defined. In Ray v. State, 81 S. W. Rep., 737, there wаs no charge on manslaughter and adequate cause was not defined, and the court found other vices in the charge.
As to the charge on reasonable doubt, that was sufficiently presented by the court. A charge was also given the jury applying the reasonable doubt as between the degrees of murder and manslaughter. This was sufficient. It is not necessary to discuss other matters suggested and ably argued in appellant‘s brief, as they were reviewed in the original opinion.
Motion for rehearing is accordingly overruled.
Overruled.