*1 application presented to this It is noted that copies court until March 1950. It shown application judgment filed with that the erroneously based record a said entered, proper jury verdict of the P., provided by Art. Vernon’s Ann. C. C. on corrected as 1950, prior presentation court of to this March present application. relator, presentation of such time, penitentiary upon proper is confined in the state
at this judgment Therefore, and sentence. issuance writ prayed herein is for denied. v. State.
Vance West April No. 24531. 1950. Jourdanton, Morriss, Steinle, Steinle, A. N. Frank W. Morriss, Boatwright Lewis, Morriss) (by An- A. San & Will tonio, appellant. for George Jourdanton, May, Attorney, P. John F. District Austin,
Blackburn, Attorney, for State’s the state. BEAUCHAMP, Judge. Vance West was convicted murder without malice penalty years
assessed of five penitentiary.
Appellant operated partnership a cafe in Bandera in West, deceased, with Bink party and another named Morse. manager, Bink salary month, was the a per at of $300.00 and a his, was generally assisted friend called “Gunner” High. partnership only This during lasted a few months which many time there is evidence of opinion, differences of which appellant culminated in buying and Morse the interest Bink West. contract of passed sale was made and checks to him. permitted Deceased was personal belongings to remove his from place business, which consisted of his desk and other killing. articles. This was done a short while before Deceased High and however, place, remained in they occupied where drinking. a table with customers and were difficulty A appellant arose High, between and from which appellant anticipated further trouble. He a called for friend another cafe procured to come down to be with him. He a rifle business, from his As place home. he returned to the known Dollar, stopped by as the Silver he residence sheriff accompany appellant and induced to him back to the cafe where shooting many happened occurred. The details of what dining immediately the main room thereafter will not be Eventually appellant repaired viewed. and the sheriff ato side room, High part which also a to the restaurant. difficulty went appellant to the room a arose in which High quelling struck several times. The sheriff succeeded in brought great room, many people disturbance a to the which among being testimony, According appellant’s them deceased. to appellant deceased cursed and because of his attack threatened confusing, High. might expected, on as the evidence While grabbed pistol dispute appellant sheriff’s it is without grabbed and, so, his hand his as did the sheriff from holster he struggle pis- they engaged possession of the were in a over Both bullets struck deceased tol when it fired twice. was leaving Appellant turning declares that an automatic was the room. as he accidentally. says that it pistol He was was fired Contrary to the time. know that at pistol and did that he morning by was this, next made the the statement mad; grabbed got just the effect he to introduced evidence away got from Bink West pistol the deceased. and shot the building away. There distance sidewalk short on the and fell hospital died. soon up picked and carried he was pistol his recovered the sheriff Immediately after appellant away. and took He turned him over attor- ney present, who was while he went to see about the deceased. appellant’s testimony grabbed pistol
It is that he from the sheriff’s holster he feared that the deceased was because turning get pistol generally kept knew deceased he standing. place just at a a few feet from where he He High expected pistol. with said he wanted also to return He pistol protect himself in case an attack made the on should be life, verily expected immediately. He denies purpose; he shot on denies that he even saw the deceased fired; during him- time the shots were the trial he availed defenses, self of other which will not be discussed. glean very lengthy ap- statement of facts and
pellant’s questions primary importance. in brief the case two by charge response The first is raised reason of the court’s in discharge charge pistol. to his evidence of accidental of the The following language: is in the Paragraph 15. “Homicide is when the death of a excusable being though happens by
human or caused accident misfortune by prosecution object the act of another who is the in aof lawful by (Emphasis added.) means.” lawful Paragraph connection, you 16. “In that if believe from the evidence, you thereof, or if have a the reasonable doubt that defendant, West, grabbed pistol question Vance in the from protect Sheriff holster Burns’ not to shoot Bink but to standpoint danger, time, as viewed his from himself from and that and on account himself and of the scuffle between possession gun accidentally sheriff the over of the same the was discharged, you acquit say by your will the and defendant verdict guilty.” objection The placed is directed to the restriction on his rights, involved, question in the phrase “who the use of the prosecution means,” object by is the of a lawful lawful and following also the restriction Section 16. The contention right regardless acquittal is based on his to an of whether or prosecution object by not he was in the a lawful a lawful words, presented any independent means. In other it right self-defense, though attempting and even he was pistol purpose secure for the with- the deceased cause, guilty gun out accidentally discharged. he would not be of murder if was says:
In his brief he “No matter what grabbed originally do, unlawful, pistol lawful or if struggle pistol fired with the sheriff the was thereafter unintentionally accidentally thereby deceased and and the was grab- intent, accidentally specific killed without bing pistol purpose whatever will immaterial.” It charge phrase destroys quoted is contended that abrogates right defendant to have his defense on killing claim accident. excepted charge Appellant duly submitted charge
quested
presenting the defense in
accordance with
forth
contention herein set
and he relies on the case of Harris
ing presented in which should have been an affirmative man- ner, complication untrammeled and without with other in issues timely presented the case. matter was to court and his The respond objection error which failure to to the raised constitutes require will reversal of the case. question
The next
which we
to discuss
that raised
desire
is
ruling
Exceptions
complains
Bill of
No.
sustaining
objection
in
of the court
the state’s
to evidence of-
general reputation
appellant
“as
fered
as to the
of deceased
trouble;
being quick-tempered; quick
fight; quick to start
to
drinking;
high temper
quarrelsome
and a
a man of
when
drinking.”
fight
temper
quick
to
he was
man
violent
when
which,
discussion,
As
be
we understand the voluminous
reason,
very
length
presents a
dif
cause of
if for no other
its
prove
question,
permitted
cer
it
he was
to
ficult
is
while
phases
as known to the
tain
people
of the enumerated characteristics
conveyed
Bandera,
appel
and which had
w„as
right
prove
prior
homicide,
lant
by
to the
refused
prior
to the
who had known deceased
witnesses
Houston —
reputation
appellant
in Bandera. His
time that
knew him
appellant
the shoot
Houston was not known
at the
Rep.
ing. Appellant
Henry
relies on
284,
While
Henry case,
necessarily
If the
the law.
in the
it is
considered
the in-
the facts of
be correct
his contention
case, supra,
Henry
then we must
come
stant case
within the
Exceptions
24 also shows error.
Bill of
No.
hold that
support
of its
cites
state’s brief
a number
cases
Henry
applic
case is
contention
rule laid down in the
that the
assaulted,
deceased,
only
person
shown to
or
is
able
where the
manifesting
very
an intention
time of the
pointed
that under
then
out
inflict violence on the defendant.
fleeing
testimony
appellant’s
own
the deceased
Judge Graves, who wrote
fired.
room at the time
shots were
*5
expressed
Henry case,
opinion
in the view
concurs
the
the
by
following
were cited
cases
the brief for
state. The
640;
State,
App.
Hudson v.
attorney:
v.
18 Crim.
state’s
217,
State,
565;
R.
State,
Tex.
App.
Spences v.
59
Cr.
6 Crim.
202,
48,
W.
118;
State,
R.
105 S.
52
128
S. W.
Roch
512;
142,
State,
75
448;
45
R.
S. W.
Tex. Cr.
Connell v.
S. W.
746;
State,
R.
31 Tex.
Id. 46 Tex.
81 S.
Evers v.
W.
The record in this case contains bills necessity we write on tion. No one conceive of the could remarks, argument, Many all of them. of these are directed to likely which not occur other incidents of the trial would again. given of no consideration to the merit these We have questions. by All reviewed the court and we others have been require importance do cussion, a dis- not consider them of sufficient to upon of in view what said on the two matters we have They not show error. we have written. do reversible stated, judgment For the reason of the trial court is versed and cause is remanded. rehearing.
ON state’s motion GRAVES, Judge. Our attention has been called to fact that in our
opinion erroneously by we fired stated that two shots were body into of In the deceased. this we were error. pistol, making There was but an one shot fired from the entrance wound, original opinion as an well exit wound. The cor- rected to show one shot fired. opinion objected We are of the should demanding necessarily
have been limited one and not defense upon part appellant’s plea disbelief jury of self- they testimony defense before could relative to consider the shooting. satisfactory an accidental Proof either defense jury would have been an ac- sufficient which to base quittal, and either defense been considered them could have having instance, disposed without acquittal first of the other. For self-defense, theory could have been had on the theory passed upon; accident need not been again, theory an acquittal of acci- could have held on the passing upon portion dent without the self-defense such transaction. are in do not think cases cited to us the state opposition expressed. to the views herein We think the case of 153 Tex. Cr. Massie v.
508 1001, (2d) point herein. said in 24 Tex. S. W. p. theory pre- Jur. accused sec. “that the should have his affirmatively, pertinently, plainly and untrammeled sented State, 80 Tex. McPeak v. unfavorable conditions.” See 754, supra. 187 S. W. expressed opinion, in our adhere to the views rehearing overruled. is therefore and the motion Ex Parte Baird. Pete 29, 1950. 24773. March No. Rehearing (Without Motion for Denied Written Relator’s April 19,1950. Opinion) Mathis, Houston, Letts and for relator. Texas, Gresham, Daniel, E. Attorney
Price General of Willis Blackburn, Attorney General, George P. Assistant State’s Attorney, Austin, for the state.
DAVIDSON, Judge. Relator, Baird, here, 154 Texas was the relator in Ex Parte grows Rep. out of 2d 845. This case S. W. must be considered in with the facts stated connection case, expressed in held: conclusion wherein we penitentiary “Accordingly, are directed authorities actually sentence, relator, upon time with the credit state though sentence, prison served in the federal federal if, after penitentiary served him in the crediting served, appear so it shall him with imposed, under served sentence has the laws this State discharge thereunder.” custody or restraint him from further