Shrum v. State , 87 Tex. Crim. 486 ( 1920 )

This conviction was for manslaughter, the term of punishment being assessed at three years in the penitentiary.

The court charged upon murder, manslaughter, self-defense and provoking a difficulty. The charge on self-defense was from the standpoint of apparent and real danger as presented to defendant's mind at the time of the occurrence. This included not only the danger from an attack by deceased but also another party who was with him. The jury was informed that if defendant's life was in danger from either standpoint, he would be entitled to his protection under the law of self-defense. The charge to the jury was not limited to the act of deceased, but included those who were acting with him if such facts were shown. The theory of the defense was that he was shot at and shot by two men, deceased being one and aided by another party, both firing shotguns; that they were in a truck owned by the electric company for whom the deceased and others were working. That these parties had been employed by the company, and in such employment were working in the business of the company, and that their employment arose out of the fact and on account of a strike by those who had been theretofore employed by the company. There was a strike by other employees, and is what defendant terms a sympathetic strike by others engaged in some character of work but not embraced among the strikers, and that those who were favoring the strike and aiding and engaged in it did what they called "peaceful picketing," that is, they would go to the employees of the company who had taken the places of the strikers as employees and talk with them and persuade them if they could, at least sought to persuade them to quit working for the company and join in the strike. There had been some trouble arising between the employees of the company who were substituted for strikers and the strikers. The company also employed parties who arc denominated guards, and they were armed. On the morning of this trouble appellant and two others went to the scene of the difficulty for the purpose of engaging in this peaceful picketing. Defendant carried a shotgun and it seems from the record the other two carried bludgeons. Upon arriving at the scene of the trouble and where the employees were at work, two of the parties left the car, in which they accompanied appellant, and engaged in trouble or difficulty with one or more of the employees, striking with a club. This seems to have precipitated the difficulty and the shooting began, several shots being fired. Appellant was standing at his car at the time of the difficulty, and his contention is, supported by his evidence, that while standing there he was shot at by deceased and another man who was in a truck owned by the company, that they struck him in two or three places, and that he returned the fire killing the deceased, and that there were a number of shots fired. The theory of the State was that appellant as soon as he reached the point where his car was stopped, just across the street from the truck and the employees of the company, jumped from his auto and shot deceased, and the shooting became general, and that the two other men who went down the street engaged in a difficulty with another employee of the company; that these three men went from a point in the city to where these parties were at work and immediately upon arriving there these series of difficulties occurred, the State's theory being that they went for that purpose, and that they were all participants or conspirators in what was done. Appellant testified he carried his gun to protect himself in case of trouble as there had been trouble between the guards employed by the company and some of the "peaceful picketing" strikers, and that he carried this gun to defend in case an attack was made upon him by those people.

An exception was reserved to the court's charge on manslaughter because it did not specifically mention that appellant had the right to shoot, from the view point of manslaughter, if the shots of the others produced pain or bloodshed. We are of opinion this contention is without merit. If as appellant contended he was fired at by the other two parties from the truck with double barrel shotguns at close range, and he fired in return to protect his life, the question would be purely self-defense, and to have carved out of this testimony as a fact that he was struck several times and make that the cause of manslaughter, would have resulted, upon exception, in a reversal of the case, if the court had limited his right of self-defense by such charge on manslaughter. There was no question of the fact that the shooting occurred. The issue between them was who began this shooting. The State's evidence clearly shows appellant began shooting at once upon reaching the scene, and the employees or guards shot in self-defense. His theory was that when the difficulty occurred down the street where his two comrades struck the employee with a billet this produced the occasion of the shooting and that he was then acting in self-defense; that he was not engaged in nor acting in concert nor agreement with those who struck the men down the street. His defensive theory seems to exclude the idea of assault on him for any other purpose except that of killing him by shooting him with a couple of shot guns. This was a direct attempt from his viewpoint to take his life, the parties being in such relation to his person that is could be done, and but for the protection of the auto he would have been killed. This would exclude aggression on the part of appellant and place it entirely upon deceased and his companions. If the State was right it would place the aggression on the part of appellant in connection with their purpose in going out there, and this difficulty between his two companions and the men engaged in the trouble when they were struck with the clubs. The court however charged on manslaughter, favorably to defendant, and the jury found in his favor acquitting him of murder. The charge on self-defense, in this connection, was based upon the proposition and theory that appellant was shot by deceased and his companions at close range, and with shotguns, and that they continued to shoot and did fire several shots. It occurs to us if the charge specified pain and bloodshed under such circumstances it would have been an unsafe limitation upon appellant's right under his theory and would practically have deprived him of his self-defense theories.

Nor do we think there was any merit in appellant's contention that the court limited self-defense as only against the deceased. The court expressly instructed the jury that he had a right to shoot in self-defense not only against deceased but any other person who was engaged in shooting at him. Exception by appellant to the charge is not sustained by the expressions in the charge. The court instructed the jury that appellant had the right of self-defense if assaulted by deceased or any other person, etc.

Another exception was reserved to the charge because it did not inform the jury appellant had the legal right to go to the scene of the killing for the purpose of picketing or talking to the employees of the company in order to induce them to quit work and join in the strike. The court in the main charge did not so instruct the jury, but gave appellant's requested instruction presenting not only that question but further that he had the right to arm himself etc., and to go to the place where the trouble occurred, and to defend himself against any attack that might be made upon him, and that such action would not abridge his right of self-defense. His theory of the case was, and he so testified, that he went there to peacefully talk to these people and to induce them to quit work, and that in so doing armed himself to protect his person from any assault that might be made against him. The charge as given is in accordance with the rule laid down in Shannon v. State, 35 Tex.Crim. Rep.. This case has been followed by numerous cases. He also gave another special charge requested by appellant that although he went with Rob Roy and Bohanan to the place of the trouble, and that though they engaged in a combat with an employee of the company, that he, appellant, would not be responsible unless such conduct was a part of the agreement to do what was done, and that if they engaged in an independent enterprise of this sort without his concurrence or knowledge, that he would not be responsible for it, and that the jury should find him not guilty from that viewpoint if they found the facts as indicated in the charge. He also instructed the jury that if appellant shot originally in self-defense he had a right to continue to shoot until all danger was passed. Nor do we think there was error in the court's charge upon the issue of provoking a difficulty. We think this question was in the case as shown by the testimony, even that introduced by the appellant. The only reason why this question was not in the case would arise from the fact that appellant was the aggressor from the beginning and pushed the difficulty to its final conclusion. This he denied, claiming that while he went there he did not go for the purpose of bringing on the difficulty but to defend himself in case it was brought upon him without legal excuse. The court's charge on provoking a difficulty we think was called for by the facts, and it was a correct charge, that is, it charged both the theory of provoking a difficulty for the purpose of killing, or for the purpose of not killing. Upon this theory of the case manslaughter become an issue, and not only was it an issue, but provoking the difficulty was in the case by reason of the facts pertaining to self-defense. The facts authorized the court to limit and abridge the right of self-defense by a charge on provoking the difficulty if the jury should take that view of the testimony. The evidence suggested the issue. We are of opinion that this case was fairly tried and without reversible error.

The judgment is affirmed.

Affirmed.

ON REHEARING. June 16, 1920.