59 S.W. 271 | Tex. Crim. App. | 1900
Appellant was convicted of murder in the second degree, and his punishment assessed at forty-four years confinement in the penitentiary; hence this appeal.
The theory relied on by the State, was that, because of former grudges of defendant towards deceased, he waylaid and killed deceased without any provocation at the time; that this was murder in the first degree, and a conviction could, at least, be sustained for murder in the second degree. On the other hand, defendant relied on self-defense; that deceased entertained a grudge towards him, evidenced by threats made against him by deceased; that deceased came to where appellant was on his own premises, and there made a hostile demonstration as if to attack him, and that appellant feared danger to his life or serious bodily injury, and shot and killed deceased in self-defense; that, at most, under the circumstances of the case, it could not be more than manslaughter.
Appellant reserved a number of bills of exception, and his assignments of error predicated thereon raise a number of questions which he insists should reverse the case. There are only two, however, which we deem necessary to be considered; the others not involving any error, or, at least, such as are not likely to occur on another trial of the case.
Inasmuch as appellant's second and third bills of exception question the action of the court admitting and rejecting testimony concerning the same matter, we will treat said bills together. Appellant's second bill is in regard to the action of the court admitting certain testimony offered by the State from Mrs. Minnie Terry. The bill is substantially *271 as follows: "The State introduced in evidence the following testimony of Mrs. Minnie Terry, to wit: `They (meaning defendant and his boys) had been tearing down our (meaning Terry's) fencing, and Mr. Nolan was going out to look after the fence, and see if they (Stantons) had torn it down again.' This testimony was objected to by the defendant on the ground that it was irrelevant, and calculated to prejudice the minds of the jury against defendant. The objection was overruled, and the testimony admitted." It is insisted on the part of the State that the objection urged to this testimony, to wit, that it was irrelevant, and calculated to prejudice the mind of the jury, is not well taken, as being too general; that some distinct ground of objection should have been stated. Under the decision in Hamblin v. State, 41 Texas Criminal Reports, 135 (decided by a majority of the court), and cases following that, the contention of the State would appear to be correct. However, from an analysis of the testimony admitted, it would appear that the court was correct in admitting evidence to the effect that defendant had formerly torn down the fence of Terry, deceased, at the time being a tenant or in the employ of Terry, and the witness testifying to this matter as a fact. The last portion of the testimony, however, was clearly inadmissible; the bill showing no knowledge by defendant of the declaration of deceased as to his purpose in going down into the field to fix the fence. Brumley v. State, 21 Texas Crim. App., 222; Johnson v. State, 22 Texas Crim. App., 206; Ball v. State, 29 Texas Crim. App., 107. Therefore it follows that the court acted properly in admitting the first part of said testimony, and, the bill of exceptions not raising the question properly as to the admission of the latter portion of the evidence, this was without error.
Appellant's third bill of exceptions is as follows: "The State having been permitted to prove by Mrs. Minnie Terry that deceased, Nolan, left the house just before the killing to look after the fencing where they (defendant and others) had been tearing the fencing (meaning Terry's) down, defendant offered to prove by J.D. Patterson that about one month before the killing he had put a wire gate in the fence which had been constructed by George Terry on a road running from his (Patterson's) house to his farm, and that there had been no other fencing removed or torn down; that defendant had nothing to do with the removal of the fence, and had not torn down any fencing on the premises; to which evidence the State objected, and the court sustained the objection, and refused to permit the testimony." While this bill, as contended by the State, does not, in terms, point out the purpose for which the testimony offered by defendant was desired, yet we think to every reasonable intendment this sufficiently appears. The testimony which the State adduced on this point is set out in the bill, and then it is stated that defendant desired to introduce the following testimony on the same issue. Obviously this testimony was offered to rebut or contradict the testimony offered on the point by the State. As we have seen in the discussion of *272 the preceding bill, while as to a part of said testimony, though it was improper, no sufficient objection was urged thereto, and it may be said that the court did not err in admitting it, because the objection that it was irrelevant merely did not point out a sufficient ground of objection, but a part of said testimony was admissible, as we have seen — that is, that defendant had previously torn the Terry fence down — it occurs to us that certainly, when defendant desired to rebut this testimony, the court should have permitted it. We gather from the record that the parties — that is, Patterson, who sided with defendant, and Terry, who sided with the deceased — all lived on the same section of land, and they were contesting as to their ownership, or possibly as to the metes and bounds of the same, and this matter of tearing down the fence appears to have been a cause of grievance, and involved in the homicide; and for the court to have permitted the State to prove that defendant had previously torn down this Terry fence, and then to refuse to allow defendant to rebut this evidence and show that he had not done so, was to present him to the jury in the attitude of a bare trespasser and wrongdoer. The jury should have had the benefit of the testimony on this issue pro and con, and then have been left to decide this important matter for themselves. We think the bill sufficiently raises the question, and that that part of the testimony showing that defendant had not torn down the fence was admissible in rebuttal of the State's testimony on the same subject.
Appellant complains that the charge of the court on manslaughter is too restrictive, in that it limits the provocation to the time of the homicide. As a general proposition this is correct. As we understand the authorities, the provocation must arise at the time of the homicide, except in the case of an insult to a female relative, which is regulated by statute. However, wherever there is testimony in the case tending to illustrate, or to intensify or render more significant the act of provocation at the time, the court should direct the jury to consider such facts and circumstances in connection with the act of provocation at the time. What might not be sufficient provocation standing alone, yet, in the light of what had preceded it, might be rendered very significant, and be considered by the jury as a sufficient provocation to produce hot blood in a person of ordinary temper. Such we understand to be the condition of the authorities on this subject. White's Ann. Code Crim. Proc., sec. 1196, and authorities cited; Spangler v. State, 41 Tex.Crim. Rep.. We have examined the record carefully, and the statement of facts shows a number of antecedent happenings between the parties tending to produce hot blood on the part of the defendant, or, at least, tending to intensify any act or demonstration of the deceased at the time, and we believe the court should have instructed the jury that they could look to such antecedent facts as circumstances tending to shed light upon what was done at the time, in order that the jury might determine whether or not the provocation was sufficient *273 to produce hot blood. The charge did not do this. For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
