Caraway v. State , 283 S.W. 836 ( 1926 )

BERRY, J.

Tile offense is manslaughter, and the punishment is 3 years in the penitentiary. This is the second appeal of this case. The result of the first appeal is reported in 98 Tex. Cr. R. 119, 263 S. W. 1063, where a sufficient statement of the facts may be found.

Appellant’s first complaint is at what he terms the fundamental error of the court in requiring defendant to be tried by the regular jury rather than by a special venire. There is no bill of exceptions in the record presenting this matter, and no' fundamental error is shown. In any event, the fact that appellant had been acquitted of the offense of murder and convicted of manslaughter on a former trial makes it certain that this was not a capital case at the time of the last trial. Gentry v. State, 67 Tex. Cr. R. 567, 152 S. W. 635; Clay v. State, 70 Tex. Cr. R. 451, 157 S. W. 165.

By various methods appellant complains at the court’s main charge, because it failed, as he alleges, to charge the jury directly on self-defense, without mixing it with other questions. We do not think that the charge is subject to the objections urged to it. In a separate and distinct paragraph, the court affirmatively and properly submitted appellant’s theory of self-defense. The charge as thus presented is as favorable as the law requires. It is true that in a separate paragraph of the court’s charge the issue of provoking the difficulty was presented in connection with the court’s charge on self-defense. The charge on provoking the difficulty, however, seems to be in accord with the precedents in this state, and we think there is no error manifested by this record with reference to this matter.

Appellant also complains at the alleged failure of the court to instruct the jury that defendant had a right to go into his field at the time of the shooting to put the hogs out, and that, if he believed that his life was in danger, he had a right to carry a gun for his protection.- This identical matter was presented by the court in his main charge in practically the language suggested by appellant in his exceptions.

By further complaint, appellant contends that.the court erred in failing to instruct the jury that, if the defendant struck Mrs. Will Jackson to free his gun or to get her away, thinking at the time that she was aiding or assisting her husband to take his life, he had a right to strijre her. The record discloses, that the court presented this matter in almost literally the same language as that in which appellant contends that it should have been presented.

Appellant also complains because the court refused to instruct the jury that they could not consider any act of the defendant in such way as to deprive him of any right of self-defense unless he did the act for the purpose of bringing on the difficulty. The court in his main charge instructed the jury that, if the defendant did not Intentionally provoke said difficulty by striking the wife of the said Will Jackson or by intentionally committing some act or acts reasonably calculated and with the intent of causing the said Will Jackson to make, an assault upon the defendant, or if they had a reasonable doubt thereof,, then the defendant’s right of self-defense would not be limited and the jury should find him not guilty. The charge as given was certainly as favorable as could have been asked by the appellant on this issue.

Complaint is also made at the court’s action in refusing to permit the appellant to prove by the witness C. R. Kirkendall that he was sent for by the defendant immediately after the homicide, and that he went to the bedside of the defendant, and that defendant told Kirkendall that Mrs. Jackson undertook to take his gun away from him for the purpose of permitting her husband, Will Jackson, to shoot him and that he saw them talking some distance before he reached the point where said Mrs. Jackson was standing, and that he felt sure they .were planning to carry out the threat formerly made by Will Jackson to kill the defendant, and further that the shooting was done under circumstances showing that appellant acted in self-defense. The court, in qualifying this bill, states that, after the shooting, defendant returned to his home several hundred yards away, and afterwards sent for the witness Kirkendall, who lived more than a mile away. The court further qualifies this bill by stating that ttye excluded testimony was as to a self-serving statement relative to the shooting made by the defendant, and that the witness who heard the shooting testified that this conversation with defendant occurred from an hour or an hour and a half to three hours after the shooting, and that the witness Kirkendall was not the first party to reach defendant, as he was at home with members of his family when witness arrived. The court also refers us to the statement of facts on page 48 thereof as a part of his qualification of this bill. By reference to the page of the statement of facts referred to by the trial court, we find from Kirkendall’s testimony.that he testified himself that it must have been somewhere about one and a half to three hours between the time of the shooting and the time he talked to the defendant. We think the court correctly excluded this testimony. We find nothing in the bill, considered in connection with the court’s qualification thereto, that would bring it' within the rule of res gestae.

By another complaint appellant alleges that the court erred in not granting a new trial by reason of the newly discovered evidence of one W. R. Gore. The affidavit of Gore is not attached to the motion for a new trial, and the motion is wholly lacking in the requirements which would bring this testimony within the rule of newly discovered evidence. Article 2019, Vernon’s Sayles’ Civil Statutes; section 197, Brandi’s P. 0.

Finding no error in the record, the judgment is in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.