40 Tex. 36 | Tex. | 1874
Appellant was indicted and convicted for an assault with intent to murder D. W. Wren.
One error assigned and relied on, and which first arises on the record, is to the ruling of the court sustaining the exception of the State to the special plea of a former conviction. The plea substantially avers that the accused had previously been- tried and convicted in the same court on an indictment for unlawfully carrying a pistol on his person, which he avers was part and parcel of the offense charged in this indictment, and that he was convicted upon proof of his having the pistol on his person at the time of the assault now charged. The Code of Criminal Procedure, Article 484 (Pas. Dig., Art. 2951), declares the requisites of this special plea, viz., “that he has been before convicted, legally, in a court of competent jurisdiction, upon the same accusation, after hav
The question made, depends on the construction and application of the terms, conviction “for the same offense.” Were they construed according to their plain import, and as understood in ordinary acceptation, under the rules of construction provided in the codes they might receive a very limited application, and the citizen thereby be deprived of valuable constitutional rights, as previously understood. This, we conceive, the Legislature has no power to effect; nor was it designed that those rules of construction, provided to facilitate the due administration of justice, should be so applied. It is quite-manifest that whatever right was secured by this plea at common law, is included and provided for by the terms-used in the code. Does, then, the plea of appellant show
The principle and rules of decision applicable to the plea of former conviction are the same with those of former acquittal. They rest on the-same basis. The general rule is, that the crime charged should be the same — that is, that they be in truth the same, though the indictments may differ in immaterial circumstances. (1 Chitty C. L., 452.)
“But it is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one will show that the defendant could not have been guilty of the other. Thus, a general acquittal of murder is a discharge upon an indictment for manslaughter upon the same person, because the latter charge was included in the former; and if it had so appeared on the trial, the defendant might have been convicted of the inferior offense ; and so an acquittal of manslaughter will preclude a future prosecution for murder; for if he were innocent of the modified crime, he could not be guilty of the same fact with the addition of malice and design.” (1 Chitty C. L., 455.)
Upon this subject of charges for offenses similar in their character, but different in degree, the general rule again is, “that conviction or acquittal for minor offenses is generally no bar to greater.” But there is the exception to this, that “if, however, on a trial of the major offense, there can be a conviction of the minor, then a former conviction or acquittal of the minor will bar the major.” (Wharton, Sec. 563.) And it is in connection with this that the same author says : “ When the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea is generally good;” and this is true, although the first trial was for misdemeanor and the second for a felony. (Wharton, Secs. 565, 566.) But we do not under
The second error assigned is presented by bill of exceptions to the exclusion of evidence by disallowance of questions asked on cross-examination of a witness for the State. Error is also assigned to the charge of the court. The grounds of these .objections cannot be well understood without considering the facts in evidence. The evidence for the State was given by Wren, the party assaulted, and Hix, the bar keeper, who had witnessed the whole transaction. Their testimony does not materially vary, and was, in substance, that the parties had been on friendly terms; they casually met in the bar room, and were standing at the bar, leaning against it, with one Morris standing between them. Drinks were called for by Wren, and afterwards accused bantered him to play at cards. He answered, “Show your money;” to which accused replied, “I have as much money as you have.” Wren then, said, “lam not going to be made a
The questions asked of Hix, the bar keeper, and disallowed by the court, were these:
1. Whether Wren was under the influence of liquor .at the time of the assault l
2. Whether the tumbler which Wren seized or attempted to seize at the time was a weapon with which, at the •distance of a few feet, in the hands of an ordinary man, •serious injury could be inflicted ?
3. What induced witness to seize the arm of Wren when he seized or attempted to seize the tumbler ?
As to the first question, it may or may not have been very material whether Wren was under the influence of liquor, as a general proposition ; but where the question •of guilt or innocence depends on the motive, intent, or state of mind of the accused at a particular time, it is important that the jury should have before them every
As to the second question, the form of it and the hypothesis of facts stated in it manifestly did call for his mere opinion or judgment on the conclusion to be drawn from them, of which the jury were quite as competent to decide as the witness. The rules on this subject are clearly discussed and well settled by the opinion of the court in Cooper v. The State, 23 Texas, 337-338, though there may be some doubt as to one of the instances mentioned in the opinion as illustrative of the rules. There was no error in disallowing this question.
But the third question does not seem to us liable to the same objection, as was held by the court. What induced the witness to seize Wren’s arm, is not a question necessarily calling for his mere opinion, but rather for an ex
The ruling on these questions, however, in view of the facts in evidence, may not be so material as to require a reversal of the judgment, and we do not so decide.
It remains to consider the errors assigned on the charge of the court, and the omission to give proper charges,. and in overruling the motion for new trial, which clearly specified the grounds of objection. The code requires • that in cases of felony the court shall give a written1 charge, whether asked by counsel or not, which shall distinctly set forth the law applicable to the case; and that." it is the duty of the judge to state plainly the law of the-case. (Code of Crim. Pro., Arts. 594, 595.) Upon this it has been frequently decided, as it had been before the - codes, that “it is only necessary to give such instructions. as are applicable to every legitimate deduction which the jury may draw from the facts.” (Johnson v. The State, 27 Texas, 766, and cases there cited; Hudson v. The State,, decided at this term.) Did, then, the charge of the court' sufficiently comply with these rules ?
It almost literally copies from the code the definition ■ of assault with intent to murder, and the criterion of the.
At the request of appellant’s counsel, the court also charged that the party, “when unlawfully attacked, is not bound to retreat, in order' to avoid the necessity of killing his assailant. The attack, however., to justify such homicide, must be such as produces a reasonable expectation or fear of attack or of death, or of some serious bodily injury, .in the person assailed.” And also, “If the jury believe, from the evidence, that Wren unlawfully and violently attacked the defendant, and that •said attack upon defendant produced in defendant’s mind a reasonable expectation or fear of death, or of •some serious bodily injury, and there was no means in the reach or power of defendant by which the threatened injury could have been prevented, then defendant was Justifiable, and the jury will acquit.”
The primary charge quoted is evidently only applicable to the facts testified, that Wren’s arm was seized and held by Hix when the former seized or attempted to seize the tumbler, so that in fact, at the moment accused fired, Wren was unable to throw the tumbler at him. The charge, assuming these facts to be true, leaves out of view altogether the question whether the accused saw, or
This view of his situation, and the state of his mind,, whether he had reasonable ground to fear or expect an immediate assault with the tumbler, was not given to the-jury; nor were they instructed that the accused was entitled to the benefit of reasonable doubt of ,his guilt fairly and naturally arising on the evidence, which we think should always be given by the court in cases of felony-We think that the conclusion of the jury from this primary charge would legitimately be, that as Wren’s arm was in fact held, and he was unable "to assail accused with the tumbler, therefore accused was not justifiable.
It is argued that the subsequent charges given supplied this defect. But'it will be perceived that they do not direct the attention of the jury to that view of the case with the clearness and point of the first charge, and we think did not counteract its effect. Be this as it may, the last paragraph of the primary charge was calculated to mislead the jury, by counteracting his defense. It tells the jury, in effect, that if accused provoked the difficulty with apparent intention to kill Wren, then his plea of-self-defense was invalid.
To what evidence this charge could reasonably apply we are unable to see. The parties had previously been friendly, and the quarrel suddenly arose. The banter of accused to Wren to play at cards for money does not appear to have been insulting to him. There appears nothing unusual in such a proposal between such parties, and therefore no intention 'to provoke a difficulty, with or without intention to kill Wren, can legitimately be drawn. The first rude or insulting words came from Wren. His anger seems to have been unnecessarily aroused, and the difficulty really arose from his conduct. This charge of
Reversed and remanded.