Jordan v. State , 11 Tex. Ct. App. 435 ( 1882 )

White, P. J.

There was no eye-witness to the immediate fact of the killing. Appellant’s admissions or confessions with regard to the attendant circumstances were introduced in evidence (without objection) by the State through her witness Robert Kennon, who testified,—“ On the morning of the 14th day of July, A. D. 1881, I drove a cow to the pen of Mr. Jordan, the defendant, where I had some other cattle, and, after putting the cow in the pen, I, in company with Wm. Heard, rode off in the direction of where a son of the defendant lives. When about a mile or a mile and a half from defendant’s house, near the house of Kirksey, defendant, who was in the field, hallooed to us and came out to where we were. He, defendant, as soon as he got to us, asked me if Mr. O’Daniel was in Flatonia. I told him I did not think he was; that I believed he was off at Major Penn’s camp-meeting. Defendant then asked me who was acting in his place as constable. I told him I did not know, but thought Mr. Doggett or Mr. Evans was. I then asked him what was the matter. He told me he wanted to give himself up; that he had killed Mr. Hasselmeyer, and that he had to do it. Defendant said that, about sunrise, he was at his cow-pen, and heard Hasselmeyer’s dogs after his, defendant’s, hogs; that he heard his hogs squealing; that he went to his house and got his gun, intending to kill the dogs; that he got in sight of the dogs and had his gun cocked on them, when he first saw Hasselmeyer coming; that he asked Hasselmeyer if he was going to kill his hogs? That Hasselmeyer replied, ‘Ho, d—n you; I will kill you,’ and as he said this he threw his left hand behind him. That when he saw Hasselmeyer make this motion he shot him.”

Other evidence showed that deceased was “a left-handed man;” that when the body was found the dead man was lying upon his back, his face upwards, his right arm lying by his side, and his left partly under the body. It was in proof, however, that deceased, when he left home and when found dead, was in his shirt-sleeves,— had on no coat,—had no hip or pistol pocket in his pants,—had no weapon on, nor was any found about his person, save an ordinary pocket knife, which was found shut up in one of the pockets of his pants.

. The charge of the court is not complained of in so far as it presented the law of murder. Upon the law of self-defense the charge of the court was: “If you believe from the evidence that the defendant did kill Joseph Hasselmeyer, and if you further believe from the evidence that, at the time of the killing, the deceased was making such an attack upon the defendant as to produce a reasonable expectation or fear of death or some serious bodily harm, or if you believe from the evidence that, at the time of the killing, the deceased ivas threatening to take the life of the defendant, and did then, by some act done, manifest his intention to execute the same, you will acquit. Uor is it required that the danger be actual and real if such danger, under the circumstances surrounding the parties, reasonably appeared so. The jury will determine whether in fact the defendant was in danger, or that there was a reasonable appearance of danger; and if you believe at the time of killing (if you believe defendant did kill Hasselmeyer) that said Hasselmeyer was not in a condition to seriously injure the defendant, but if you believe he did know he was in no such danger, or could have known it by reasonable care exercised, then such killing would not be justifiable.”

. Objection has been made, and, as we think, not without reason, to the latter portion of this charge. It was certainly calculated to mislead the jury, in telling them that they would “ determine whether in fact the defendant was in danger.” That was not the question to be determined by them. The evidence, as they had it before them, showed really that deceased was wholly unarmed,— that he did not even have a hip-pocket in which to carry a weapon,— and with knowledge of such facts in evidence before them we imagine it would not be difficult for them to arrive at the conclusion that defendant was in fact in no danger. But did defendant have the same knowledge of these facts at the time of the killing % The law does not hold him to the actual existence of danger, but the criterion of action with him is that “ it must reasonably appear by the acts, or by words coupled with the acts, of the person killed that it was the purpose and intent of such person to commit murder or inflict serious bodily harm upon him.” Penal Code, art. 570. And again: “The attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death or serious bodily ” harm. Penal Code, art. 574. The question is not one of actual danger, but of reasonable apprehension of danger. And it is one which in all fairness can only be determined by the facts as they appeared to the party killing at the very time of the homicide; and not by the facts as they may be shown really to have existed, after a calm, quiet and thorough investigation by a jury. As was said in Richardson’s case, “a defendant is always justifiable in acting for his defense, or the defense of his family or property, according to the circumstances as they reasonably appear to him, and it is but just and right that his action should be judged of in the light of the circumstances as they appeared to him at the time. Such is our understanding of the law, and such the rule of decision in this State. It is not necessary that there should have been actual danger, provided the party acted on a reasonable apprehension of danger.” Richardson v. State, 7 Texas Ct. App. 486, and authorities cited.

Nor is the other proposition submitted by the court, viz., that the jury will determine whether “there was a reasonable appearance of danger,” any more nearly correct in law than the one just noticed; because, in determining that question, the jury would in the very nature of things, look to all the facts in evidence before them, many of which might not, could not, and doubtless were not known to the defendant at the time of the killing. The question was not how the facts and circumstances appeared to the jury after hearing all the evidence, but, on the other hand, were the facts and circumstances, as they appeared at the time to the defendant, such as that they can say he had reasonable grounds for his belief that he was in danger of death or serious bodily harm. Blake v. State, 3 Texas Ct. App. 581.

Again: in the paragraph quoted from the charge, the jury were further told, “If you believe he (defendant) did know he was in no such danger, or could have known it by reasonable care exercised, then such killing would not be justifiable.” A party who has reasonable expectation or fear of death or serious bodily harm, imminent and pressing under the circumstances as they appear to him, is not required to wait until he has by the exercise of reason carefully examined all the facts necessary to be known as to the truth and correctness of his apprehensions. To require this would be to render entirely nugatory and worthless that kind and humane provision of the law which allows him to act, and act promptly, even to the taking of his assailant’s life, when it reasonably appears by the acts, or by the words coupled with the acts, of the person killed that it was the purpose and intent of such person to take his life or to do him some serious bodily harm. When a man has a reasonable expectation or fear of death or of some serious bodily harm from an unlawful attack made upon him, he may kill, and kill upon the very spur of the moment, and the law will justify the homicide without requiring him to show that by the exercise of additional care the killing could not have been avoided with safety to himself. Penal Code, art. 574; Ross v. State, 10 Texas Ct. App. 455; Kendall v. State, 8 Texas Ct. App. 569; Ainsworth v. State, Id. 532. It is only in cases where the unlawful attack upon person or property is not made with a purpose of taking his life or doing him serious bodily harm, that the party assailed is required not only to exercise care but to resort to all other means save retreating, before he can justify the taking of human life. Penal Code, art. 572; Kendall v. State, 8 Texas Ct. App. 569; Hill v. State, 10 Texas Ct. App. 618.

The first, second, and third special instructions requested for defendant embodied a correct enunciation of the principles of the law of justifiable homicide in self-defense, as applicable to the evidence in the case, and should have been given instead of the charge above discussed. It is unnecessary further to discuss the charge of the court with reference to the confessions or admissions of defendant, than to say that the fifth special instruction on this branch of the case requested for defendant was a correct expression of the law as held by this court in Pharr v. State, 1 Texas Ct. App. 472, whilst the charge as given was not wholly free from objection.

For error in the charge of the court as above pointed out, the judgment is reversed and the cause remanded.

Beversed and remanded.