Howard v. State , 23 Tex. Ct. App. 265 ( 1887 )

White, Presiding Judge.

This appeal is from a judgment of conviction for assault with intent to murder. Whilst the record submitted to us is very voluminous, the material questions raised may all be disposed of, for the purposes of this appeal, by the determination of a few general propositions which are capable of being formulated out of the many bills of exception reserved at the trial and now insisted upon as error by appellant.

1. The court refused to charge the jury the law of manslaughter as applicable to the facts in evidence which tended to establish manslaughter, and would, therefore, reduce the defendant’s crime to aggravated assault.

2. That the court refused and declined to charge upon self defense.

3. The court excluded evidence of antecedent acts and conduct of the injured party toward, and previous threats made by him against, the accused, which would have tended to rebut the presumption of malice and mitigate the offense charged.

Manslaughter was only predicable, if at all, upon two theories or phases of the evidence proposed and excluded, going to show adequate cause, to wit, first, insulting words toward the mother of defendant; secondly, sudden passion, either anger, rage or terror, provoked by the acts and conduct of the injured party at the time of the shooting, rendering defendant’s mind incapable of cool reflection. (Penal Code, art. 594.)

As to insulting words, appellant’s tenth bill of exceptions shows that the court refused to permit appellant to prove by the witness Hanley a conversation between the witness and the injured party, Russell, on the evening before the shooting, in which Russell had said that he intended to kill defendant,—“ the d—d son of a whore.” This testimony was refused by the court upon the ground that it was immaterial and irrelevant, and because no predicate was laid for its introduction. The ruling was correct since, though it was made to appear that the witness had informed accused of the insulting words, it is not made to appear that the shooting took place at the first meeting betwen the parties after accused was so informed. This was essential as a predicate to the admissibility of the evidence. (Penal Code, art. 597, sub-div. 4, and art. 598 ; Eanes v. The State, 10 Texas Ct. App., 422; Neiland v. The State, 19 Texas Ct. App., 16(5; Paulin v. The State, 21 Texas Ct. App., 436; Orman v. The State, 22 Texas Ct. App., 604.)

All evidence of antecedent acts, conduct and threats of Russell towards appellant were, upon objection by the State, denied and excluded by the court upon the ground, as we gather from the bills of exception, that they were irrelevant and immaterial in that no predicate was laid for their introduction by showing that Russell, at the time of the shooting, was doing some overt act to provoke adequate cause in the mind of defendant, or going to show an intent on his part to execute such previous theats.

Is this the rule with regard to threats as evidence? Must an overt act be established as a predicate to their admissibility? Or are they in all cases admissible as evidence per se ?

Our statute provides that “ where a defendant seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made, but the same shall not be regarded as affording a justification for the offense unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made. (Penal Code, art. 608.)

This statute does not pretend to define the rule as to the admissibility of the threats as evidence, but only the effect to be given to threats when admitted at the instance of á defendant who is seeking to justify his acts on account of such threats. To justify—to entirely exonerate a party for a homicide committed on account of threats, it must be shown that deceased not only made the threats, but that he actually did some act manifesting at the time he was killed an intention to execute his threat. In other words, to justify homicide an overt act evincing an intent or purpose to carry out his threat must be established. But, where a defendant does not claim complete justification, but seeks only to show the standpoint from which he acted, are not such threats admissible to throw light upon his act and mitigate his offense? There is certainly nothing in the language of the statute quoted which denies him such right; the language is that threats made, accompanied by acts, “shall not be regarded as affording a justification.” Therefore, though not in justification, they may neverthless be admissible as evidence,—as to their effect as evidence, that is another question. They may not justify, and still they may mitigate the offense.

In Horbach’s case, 43 Texas, 359, Roberts, O. J., says: “By our code threats are admissible as independent evidence, without having first established a predicate for their admission by proof of acts done at the time of the killing to which they might give additional force, subject to having their effect as evidence subsequently explained away and destroyed by the charge of the court in the absence of evidence tending to prove such acts.” In the State v. McETeely, 34 La., 1033, it was held that on a trial on a charge of murder the accused has the right to show and prove previous threats against him, and the dangerous character of the deceased, as evidence tending to rebut the presumption of malice and to mitigate the offense charged.

We are not aware of any decision of the Supreme Court or of this court going to the extent of holding that evidence of threats was not admissible, simply because no predicate had been laid for their introduction by proof of an overt act of the injured party. In the cases cited by counsel for the State, except the case of Penland, 19 Texas Court of Appeals, 365, evidence of the threats had been admitted, and it was the legitimate effect attaching to them as evidence, and not their admissibility, which was under discussion. In Penland’s case the defense was justifiable homicide in self defense, and the refusal to permit evidence of the previous threats is discussed with reference to that defense, and it is held that the ruling could not possibly have injured defendant, since his defense was wholly without the slightest shadow of foundation in law upon the facts developed. (See Allen v. The State, 17 Texas Ct. App., 637.) This question of threats will be found to have been discussed in the following decisions of the Court of Appeals, viz: Sims v. The State, 9 Texas Court of Appeals, 586; Russell v. The State, 11 Texas Court of Appeals, 288; Thomas v. The State, Id., 315; Logan v. The State, 17 Texas Court of Appeals, 50; Allen v. The State, Id., 637; Penland v. The State, 19 Texas Court of Appeals, 365; Patillo v. The State, 22 Texas Court of Appeals, 586.

From all the authorities we are of opinion the true doctrine is that threats are ordinarily per se admissible as independent evidencie in cases of this character. But, as to how far they will justify or mitigate a crime, we believe the correct rule is that announced by Moore, J., in Johnson v. The State, 27 Texas, 757. He says: “If at the time of the homicide there is any act from which the accused may reasonably infer an intention to carry them into effect, he is justified in resorting to such means as may then be in his power to defend and protect himself against their execution. If death ensues, it is justifiable homicide. But in no case, under the provisions of the code or out of it, if we are permitted to look elsewhere to ascertain the law upon the subject, can it be held that mere threats, or threats unaccompanied by some demonstration from which the accused may reasonably infer the intention of their execution by the deceased, either justify such homicide or reduce it from murder to manslaughter.” As thus announced, the rule has been reaffirmed in Irvin v. The State, 43 Texas, 236, and Sims v. The State, 9 Texas Court of Appeals, 586. So that whilst threats are per se admissible, they can neither justify nor mitigate unless there was at the time some demonstration or act from which the accused might reasonably infer an intention to execute them.

How let us apply these principles to the case in hand. The excluded evidence was admissible, and the court committed an error in excluding it. If the evidence was material, that is, if the excluded evidence would have been supplemented and emphasized by other evidence of an overt act or demonstration at the time by Russell, then the error becomes material and reversible error. It is not essential that the overt act or demonstration be sufficient to justify or raise the issue of self defense, but if in connection with other antecedent facts and circumstances, it was sufficient to excite, in the mind of a person of ordinary temper, sudden passion, rendering it incapable of cool reflection, then adequate cause would be produced sufficient to raise the issue of manslaughter, and the law of manslaughter would be the law of the case.

It is in evidence that Russell, as he passed, checked up and looked into the window of appellant’s house, and his manner was so significant as to attract the attention of witness; that, when appellant came out of his house, he did not immediately present his gun at Russell. A voice called out in an elevated tone, “Don’t do that, Howard.” Doubtless Russell, hearing this, turned to see what was the occasion of it. At all events, Hanley, a witness for the defendant, says that he, Russell, turned, facing appellant, and ran his right hand under his coat, and that this was done before appellant presented his gun and fired. How, if Hanley tells the truth, here was clearly a demonstration on the part of Russell which, in connection with the previous threats, might have aroused in the mind of defendant a sudden passion of anger, terror, etc., sufficient to render it incapable of cool reflection, and from which a jury might have found manslaughter instead of murder, had death ensued from the shooting. (Neyland v. The State, 13 Texas Ct. App., 537; Hobbs v. The State, 15 Texas Ct. App., 517; Miles v. The State, 18 Texas Ct. App., 156; Wadlington v. The State, 19 Texas Ct. App., 266.) It will not do to say that Hanley’s testimony on this point is uncorroborated, and, therefore, probably untrue. That was matter for the jury, and not for the court to determine. It is the duty of the court to instruct the jury upon every phase of case suggested by the proof, however slight may be the testimony supporting it. (Hobbs v. The State, 16 Texas Ct. App., 517.)

But it is contended that defendant came out of his house with his gun in his hands, and for the purpose of provoking the contest, and with apparent intention of killing or doing serious bodily injury to Russell; and that, in consequence, his offense under our statute could not come within the definition of manslaughter. (Penal Code, art. 603.) We reply that his motive in coming out of the house with gun in hand was a fact to be found by the jury.

Opinion delivered April 13, 1887.

But, again, it may be contended that appellant’s having fired the second shot when his enemy was retreating, and he himself no longer in any apparent, much less real danger, he had carried his right to act on demonstrations and appearances too far, and had death resulted from the second shot, his crime could not have been of less grade than murder. Discussing an analogous question in Hobbs’s case, 16 Texas Court of Appeals, page 523, Judge Willson says: “But suppose he became excited by passion to such an extent as to render his mind incapable of cool reflection, and under this state of excitement he carried his right of self defense too far, used more force than was necessary to his protection, fired one or more shots after all real or apparent danger had ceased, but before his mind had had time to cool, and from wounds thus inflicted death had resulted, would this have been murder? We think not. * * * We think a homicide under these circumstances would not be of a higher grade than manslaughter.” (See also 35 Mich., 16.)

Recurring back to the original proposition, that manslaughter was part of the law which should have been given in charge to the jury, it may also be well to call attention to the rule announced in Miles’s case, 18 Texas Court of Appeals, 170, to the effect that while it is true that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation, yet, in passing upon the sufficiency of the provocation, and on the effect of the passion upon the mind of the defendant, the past conduct of deceased towards defendant, his threats and bearing, in fact all the facts and circumstances in the case should be considered by the jury. An act standing alone may not be sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not to the act committed at the time of the homicide. (Waddington v. The State, 19 Texas Ct. App., 266.)

We are of opinion that the court erred in excluding the evidence of the antecedent acts, conduct and threats of Russell towards and against appellant; and that the court erred to the injury of defendant’s rights in failing and refusing to give in charge to the jury the law of manslaughter as applicable to the case. And for these errors the judgment is reversed and the cause remanded for another trial. Reversed and remanded.