24 S.W. 293 | Tex. Crim. App. | 1893
Appellant was convicted for the murder of Thomas Lowe, the verdict and judgment being for murder of the second degree, with confinement in the penitentiary for thirty years. We deem it necessary to notice but two matters.
1. The homicide occurred in the unorganized county of Kent, which was at the time of the homicide attached to Scurry. The case was sent to Fisher County on change of venue. When the venue was changed to Fisher County, Kent County was still unorganized. In the District Court of Fisher, appellant, in writing, moved the court to send the cause to Kent County, it being then organized. The motion was refused, and appellant reserved his bill of exception. In this there was no error. The case being legally sent to Fisher County by change of venue, it belonged to that county just as if the homicide had occurred there and the bill of indictment had been originally presented into the District Court of Fisher County. The cases cited by appellant are not in point.
2. There are two theories urged below in support of self-defense: (1) That the appellant killed deceased in the protection of his property, or property in his possession. The court instructed the jury *29 upon this theory of the case. (2) That, independent of this phase of the case, appellant was justified, because deceased was making an assault and battery upon him with a hatchet, which endangered his life, or which threatened him with great bodily injury. If appellant relies upon the first theory, he must show, or the evidence must show, that he killed while the deceased was in the very act of making the violent attack on his property, and he must also show that he resorted to all other means to prevent the injury. These rules were given in charge to the jury. On the other hand, if he killed deceased to prevent murder, or to prevent receiving from deceased great bodily harm which might reasonably result in his death, he would not be required to kill while the deceased was in the very act of killing him, or was in the very act of inflicting great bodily injury upon him; nor would he be required to resort to all other means to prevent murder or the great bodily injury; for if deceased was in the act of killing defendant or inflicting upon him great bodily injury, or had done some act showing evidently an intent to commit such an offense, the accused could act at once, and with the most effective means. Is this theory presented by evidence with sufficient cogency to require a charge thereon? For the court instructed only upon the first ground — namely, homicide in protection of property.
Cockrill states: "The first I saw of Lowe, he came riding up the string of fence, and was in about forty or fifty yards of us, when he dismounted and began to take down the fence. I lived with and worked for R.P. Woodring. We lived about one-half mile from Thomas Lowe. When I saw him coming I did not know him, and asked Woodring who he was. He said it was Mr. Lowe. I then asked where he supposed Lowe was going, and he said he reckoned he (Lowe) was just riding around. Lowe commenced cutting the fence, and Woodring picked up his tamping pole — which was about six feet long, and was a heavy pole he had been using to pack the dirt around the posts we were setting in the ground; it was about two inches in diameter — started to him, and I told. Woodring not to have any trouble with the old gentleman, and he said, "I am not going to; but, God damn him, he can't cut my fence unless he cuts it by law.' Woodring got close to Lowe. He said: 'Mr. Lowe, don't you cut my fence.' Lowe replied, 'You go away from here, Pat Woodring; God damn you, I'll kill you.' Lowe said, 'We came here to cut this fence, and I am going to cut it,' and he made for his gun. Lowe's daughter put her left hand on the gun scabbard and her right hand on the saddle pockets, and when Lowe grabbed for his gun, Woodring said, 'Mr. Lowe, don't you get that gun.' Lowe saw that Woodring was going to get to him before he could get his gun, and he wheeled on Woodring, with his hatchet in his left hand, and struck defendant on the side of his head with it. Woodring then drew his pistol on him, *30 and told him to stop, and Lowe 'sorter kind of checked up a little,' and the young lady screamed out, 'Mr. Woodring, don't shoot my pa.' Woodring then took his pistol off of Lowe, and casts his (defendant's) eyes down on it, and then Lowe jumped at defendant and grabbed him by the left arm with his right hand, and struck Woodring over the head with the hatchet two or three times, knocked his hat off, and staggered him backwards. Woodring then drew his pistol upon him again, and told him to stand back. Lowe ran defendant back ten or fifteen feet, shoving him, and striking at him with the hatchet. Then Woodring commenced shooting, and shot twice before he got Lowe loose from him. After the second shot, defendant shoved Lowe loose, and Lowe had his right side to defendant when defendant shot the third shot. Lowe then wheeled as if to come back and strike, when the hatchet flew out of his hand. The hatchet left his (Lowe's) hand about the time defendant fired the fourth shot, and Lowe fell, with his head up hill, on his face, and doubled up. After that I told Woodring not to shoot any more, and he said, "I am not going to.' Then defendant asked me to go with him to his home. He said he wanted to get his horse, and tell the neighbors what he had done, so that they could come and take care of Lowe."
Miss Annie Knutson, a witness for defendant, being sworn, testified as follows: "I was at home in Kent County on March 23, 1891, when Mr. Tom Lowe was killed by R.P. Woodring. The killing occurred about seventy-five yards from our dugout. I saw Mr. Lowe when he struck Mr. Woodring. I could tell from where I was what he struck him with; it was a hatchet. I know he struck once, and I saw Lowe strike at him two or three times more. He had struck at him twice when Woodring began shooting. I saw Wes Cockrill and Minnie Lowe there. Minnie ran when the first shot was fired. I saw Mr. McLane there on a dun horse. My ma was at home, and saw part of the difficulty. She is now here attending court in this case."
These witnesses do not agree in every particular, but their testimony most clearly presents a case which, if believed by the jury, would justify or at least reduce the killing to manslaughter. There was introduced in evidence a great deal of testimony bearing upon the title to the fence, some of which supported the claim of appellant, and some was against his claim. The jury might not have believed his claim genuine, or that it was made in good faith; and if the jury decided that his claim was not good, or not made in good faith, his first ground of self-defense evidently failed. Hence, the imperative necessity of instructing the jury upon self-defense, disconnected with the fence question altogether; wherefore the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Judges all present and concurring. *31
