21 S.W. 680 | Tex. Crim. App. | 1893
On Sunday, October 16, 1892, at 3 o'clock in the morning, in a wine room in the rear of a saloon in the city of Waco, a party of four persons, consisting of two men and two women, were drinking together, being waited on by the deceased, Clem Stovall, who was a porter employed by the saloon. One Jim Finnegan went there, and began talking with them, and appellant also went into the room, and a quarrel starting up between him and one of the women, appellant attempted to injure her, but was prevented. One of the men, one Root, stating he would protect her, appellant moved towards him with a threat of beating him, but was stopped by Root's drawing a pistol. He said to Root, "I see you are a gun fighter," and hurried from the room, closing the door. After drinking about five minutes, one of the women proposed to leave, as she was afraid appellant would return and cause trouble. She opened the door, and appellant was standing in front of it with a revolver, which he immediately presented at Root with both hands, and fired. As soon as the crowd saw appellant in the door they broke for it, to get out, and the porter, Clem Stovall, accidentally got in the way, and was killed. *576 Appellant was convicted of murder in the second degree, and his punishment assessed at six years, from which he appeals.
1. Appellant complains that the court erred in refusing to give his special instruction on self-defense asked by him. There was no exception taken to the refusal of the court to give the special requested charge. The sole evidence on which it is claimed the court should have charged on self-defense was that of the witness Finnegan, who testified that when the door was opened appellant was standing with his hands down, and he did not see a pistol in his hand until he fired, and that Root drew his pistol before defendant fired. The testimony of this witness, under the facts disclosed by the record, was unworthy of any credit, and could have had no weight with the jury. But concede that in fact he did not see the pistol in defendant's hand until he shot, it would not necessarily be inconsistent with the testimony of all the other witnesses testifying to the difficulty, who stated that as soon as the door opened they saw defendant standing in the door with the pistol in his hand; nor does it disprove the statement of said witnesses that it was defendant's appearance at the door with his pistol drawn that induced Root to draw his own.
Pretermitting the question whether defendant had the right to go off and arm himself, and then return to a place where he had no business, and where he reasonably expected to have a deadly encounter, and conceding the right to a charge on self-defense, if it had been shown that he made no effort to use his pistol until he saw Root was about to take his life by some act then done manifesting such intention, yet in the case at bar there is no such testimony as could have required such a charge. If defendant, when the door opened, was seen standing in the door with his pistol drawn, as testified to by all the witnesses but one, who did not see it (and this testimony is strongly corroborated by the instant rush of men and women to get out of the room as soon as they saw him), there could be no self-defense in the case, and the court did not err in refusing to give it.
2. Neither did the court err in refusing to charge on manslaughter. The evidence shows that the appellant, upon Root stating he would protect the women, started towards Root, stating he would beat him, but was stopped by his drawing a pistol, and went off remarking, "You are a gun fighter," and was gone five minutes, and returned with a pistol, and almost immediately after the door opened fired upon Root, and killed the porter, Clem Stovall, who got between them. The record certainly discloses no adequate cause that could have reduced the offense to manslaughter.
3. Nor do we see any error in permitting proof to be offered of the fact that defendant was a professional pugilist, and champion of his class, as it sustains the testimony of Root that he drew his pistol in self-defense *577 in the first instance, and not with any desire to seek a quarrel or provoke appellant.
4. As to the refusal of the court to permit the appellant to testify after the case was closed and the argument was begun, the counsel in oral argument having admitted there was no error, it is not necessary to discuss it. There is no reversible error in the case, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.
