Hall v. State , 43 Tex. Crim. 479 ( 1902 )

Appellant was convicted of an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for a term of seven years. This is the third appeal of this case, the previous appeals being reported in 42 Texas Criminal Reports, 444, and ante, page 257.

Appellant in his fifth assignment of error complains of the failure of the court to give the following charge: "If the jury find and believe from the evidence that at the time defendant fired the shot that the prosecuting witness Susan Hall was making a violent attack upon him under circumstances which reasonably indicated her intention to murder him, or inflict serious bodily injury upon him, and the weapon used by her and the manner of its use were such as was reasonably calculated to produce either of those results, then the law would presume that the said Susan Hall intended to kill him or inflict serious bodily injury upon him, and in such case, if defendant so acted, he would be justifiable." This charge should have been given. Article 676 provides: "When the homicide takes place to prevent murder, maiming, disfiguring, or castration, if the weapons or means used by the party attempting or committing such murder, maiming, disfiguring, or castration are such as would have been calculated to produce that result, it is to be presumed the person using them designed to inflict the injury." It will be seen from this article that when the homicide is committed to prevent murder, and the weapon or means used by the aggressor was calculated to effect that purpose, the code makes it an absolute presumption of law that his design was to inflict the injury indicated. This legal presumption is imperative with the jury as well as with the court, and when applicable must be given in charge to the jury. Kendall v. State, 8 Texas Crim. App., 567; Jones v. State, 17 Texas Crim, App., 612; Cochran v. State, 28 Texas Crim. App., 422.

The learned trial judge, in presenting appellant's defense, did so properly, except as to this phase, but under the circumstances of this case the statute imperatively requires this charge asked by appellant to be given. The testimony authorizing this charge is substantially, as follows: Appellant testified, that when he got near the porch Susan Hall came out with a pistol in her hand, and pointed it at him, and said: "You dirty son of a bitch, I am going to kill you for telling about that Dallas matter;" that at this time defendant's pistol was in his pocket; that she drew the pistol on him, and he remonstrated, and she said: "You dirty son of a bitch you, you shall never see your children again," and leveled her pistol up, and that he threw up one hand and drew his pistol from his pocket and shot her in the right side; that when he threw up his left hand he knocked her pistol up and it fired over his head; that the first shot struck her in the right side; that she again threw the pistol on him and he grabbed it with his left hand and shot her in the stomach; that when he grabbed the pistol with his left hand, the hammer came down on his hand and made an incised wound between his thumb and index finger on his left hand; that after he shot her the second time he wrenched her pistol from her and walked off; that when he first grabbed it he tried to take it from her, but was unable to do so until she began to weaken from the effects of the second shot. As stated, we think this evidence clearly authorized and required the court to give the charge requested by appellant.

Appellant complains of the eleventh paragraph of the charge of the court, which is as follows: "The jury are instructed, if they believe from the evidence that defendant Gabe Hall and Susan Hall were married some time during the year 1887, and that they lived together as husband and wife until the early part of February, 1900, and that about that time they separated and ceased to live together as husband and wife, and that Susan Hall took their five minor children with her and went to reside with her father Moses Wright, and that defendant Gabe Hall went elsewhere to reside, then you are further instructed that defendant Gabe Hall at any time had the legal right to enter the premises of Moses Wright, if not forbidden by Moses Wright, in a peaceable manner, for the purpose of visiting his children, or for the purpose of visiting his wife, if invited by her to do so, and in doing so he would not be guilty of any trespass; and if the jury believe from the evidence that defendant under these circumstances went upon the premises of Moses Wright upon the invitation of Susan Hall, or for the purpose of seeing his children, with no ulterior object of killing his wife, or making an attack upon her of any sort, then his right of self-defense would not be compromised or abridged in any manner by going upon said premises; and if Susan Hall attacked him with a pistol under such circumstances, in such manner as to cause him to believe that she was then and there about to take his life, or to inflict upon him serious bodily injury, then defendant would have the right to defend himself against such assault, even to the taking of the life of Susan Hall." Appellant objects to this charge on the ground that the same is erroneous and misleading; is upon the weight of the evidence, in that the jury are told that defendant had the legal right to enter the premises of Moses Wright, if not forbidden to do so by Moses Wright, in a peaceable manner, for the purpose of visiting his children, or for the purpose of visiting Susan Hall, if invited by her to do so; and in doing this he would not be guilty of any trespass; whereas, under the law defendant had the right to go upon the premises of Moses Wright at any reasonable time to see his children, whether forbidden by Moses Wright or not, if he allowed and permitted the children of defendant to stay at his house. Furthermore, there was no proof in the case whatever that Moses Wright had ever forbidden defendant to come upon his premises for the purpose of seeing his children, and this charge is without evidence to support it. Again, the testimony of prosecutrix, Susan Hall, shows that she had left word with defendant's mother for him to come down to Moses Wright's and see her; while defendant's mother testified that she had requested her to tell defendant to come down and see her, and that she had so informed defendant. This charge should not have been given in this form. As appellant contends, defendant had the legal right to visit his children. This proposition of law was clearly laid down in the opinions on the former appeals of this case. Appellant had the legal right to go upon the premises to see his children. Still he would have to go in a peaceable manner. The record on this appeal, as on the former appeals, shows that appellant and his wife had separated; the wife taking the children to her father's, Moses Wright. If Moses Wright had forbidden appellant to come upon his premises after permitting the children to remain there, this might be introduced as a circumstance to show that appellant went there for the purpose of provoking a difficulty; but the mere fact that Moses Wright had forbidden appellant to come upon the premises would not, per se, make appellant a trespasser in coming upon said premises. Nor would the fact that his wife had not invited him to come preclude his going upon the premises to see his own children. The court should have charged that defendant had the legal right to go upon the premises in a peaceable manner to see his children, whether forbidden by Moses Wright or invited there by his wife or not. Appellant insists that the evidence does not show that Moses Wright forbade him going upon the premises. We see nothing to authorize this statement, except an inference to be drawn from the evidence, wherein appellant says he carried the pistol to the premises to protect himself from the threatened attack by Moses Wright. We do not think this statement of appellant authorized the court to charge the jury that Wright had forbidden appellant to come upon the premises. If Moses Wright had forbidden appellant to come upon the premises, such fact would not preclude appellant entering the same in a peaceable and lawful manner, since his children were there, and he had a legal right to see his children; but appellant would not have any right to force an entrance upon the premises, and resist Moses Wright or his wife in entering the premises. If he did so, and the difficulty ensued, brought on by such unlawful act, then appellant's perfect right of self-defense would be forfeited. If appellant went to the premises for the purpose, as stated, of seeing his children, and intending to bring on a difficulty, if necessary, in order to see them, and attempted to force an entrance to said premises, or did some act reasonably calculated to, and which did, produce in the mind of his wife the apprehension and fear that defendant intended to force an entrance, and said acts and conduct on the part of appellant brought about the difficulty, producing the occasion of the injured wife assaulting appellant, then appellant's right of self-defense, to that extent, would be forfeited; and, if appellant shot and wounded deceased (his wife) under such circumstances, then he would be guilty at least of an aggravated assault, whether he shot his wife in self-defense or not. If appellant went to the premises of Moses Wright, where his children were, with the intention of provoking a difficulty and killing his wife, and he did some act or made some declaration reasonably calculated to provoke a difficulty, with the intention to kill, he would be guilty of assault to murder, whether he shot the injured party (his wife) in self-defense or not. The mere intention to provoke a difficulty will not forfeit appellant's right of self-defense, but at the time of the difficulty he must then and there do some act or make some declaration evidencing an intention and calculated to provoke a difficulty, before his right of self-defense is forfeited. This matter is thoroughly discussed in the authorities cited by counsel for appellant in their brief. See Cartwright v. State, 14 Texas Crim. App., 486; Jones v. State, 17 Texas Crim. App., 611; White v. State, 23 Texas Crim. App., 164; Ball v. State, 29 Texas Crim. App., 126; Franklin v. State, 30 Texas Crim. App., 640; Shannon v. State,35 Tex. Crim. 2; Carter v. State, 37 Tex.Crim. Rep.; Tollett v. State (Texas Crim. App.), 55 S.W. Rep., 575; Young v. State, 41 Tex.Crim. Rep.; McCandless v. State,42 Tex. Crim. 655; Grayson v. State (Texas Crim. App.), 57 S.W. Rep., 808. During the conjugal relation, and before the decree of divorce had been granted, and before a court of competent jurisdiction has passed on the question of the custody of the children, the husband has as much legal right to the care, custody, and control of them as the wife. The wife has no legal right to prevent the husband from seeing the children. Their legal rights are coequal. This being true, appellant had the right to enter the premises. He had the right in a peaceable manner to seek admission there for the purpose of carrying out his lawful purpose in seeing the children. If this was all that he did, and his wife assaulted him with the pistol, his right of self-defense would be perfect. And as stated, whether invited by his wife or forbidden by Moses Wright, defendant could not be deprived of his legal right to see his children. If his children were placed in the home of Moses Wright, and he could not see his children without resorting to violence, then such legal right to see his children would not be a predicate for using violence to see them, but he would have to resort to the courts of the country. Appellant complains of that portion of the charge which instructs the jury that appellant would have the right to enter the premises in a peaceable manner. We do not think there was any error in this. But the court should not have limited his right to see his children to an invitation from his wife or a prohibition on the part of Moses Wright.

The twelfth paragraph of the court's charge is subject to substantially the same objections urged by appellant to the eleventh paragraph; and we do not deem it necessary to further consider the same.

Appellant complains of the sixteenth paragraph of the court's charge, which reads as follows: "The jury are instructed not to consider any evidence, either written or oral, which was admitted before them for the purpose of impeaching or discrediting witnesses sought to be impeached or discredited." This charge should have been more explicit. Where the trial court is called upon to limit the consideration of certain evidence, to certain purposes, it should clearly indicate the evidence attempted to be so limited in his charge, otherwise the jury could and would not know what evidence was referred to. Appellant further complains of the failure of the court to give the eighth special charge requested by him, as follows: "If you believe from the evidence that defendant Gabe Hall went to the home of prosecuting witness Susan Hall, at the instance and request of the said Susan Hall, or if the mother of defendant (Mrs. J.M. Hall) told defendant that the said Susan Hall wanted him (defendant) to come down and see her as soon as he returned from Dallas, or if you should find and believe from the evidence that defendant went to the home of said Susan Hall to see his children, or for any other lawful purpose without invitation, and the said Susan Hall made an unlawful and violent assault upon defendant with a pistol, and it reasonably appeared to defendant that said Susan Hall was about to take his life or inflict serious bodily injury upon him, and defendant shot and wounded said Susan Hall with a pistol, in order to save his own life, or to prevent serious bodily injury to himself from such unlawful assault so made upon him, then you will find defendant not guilty. And in this connection you are further instructed that, if defendant once commenced to shoot in order to save his life or to prevent serious bodily injury to himself, then he would have the right to continue to shoot as long as there was an appearance of danger to himself from such threatened assault; and in determining whether or not the defendant was in danger from such assault, you are instructed that it is not essential to the right of self-defense that the danger should in fact exist. The danger may be only apparent and not real. If it reasonably appears from the circumstances of the case that danger existed, the person threatened with such apparent danger has the right to defend himself against it to the same extent that he would have were the danger real. And in determining whether there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of defendant, who acted upon them, and from no other standpoint. If it reasonably appeared to defendant that the danger in fact existed, he had the right to defend against it to the same extent and under the same rules as if the danger had been real." This charge is correct, and presents the law, as we view it, applicable to the facts of this case; and should have been given.

Appellant's ninth assignment of error complains, that the court erred in permitting the State to prove by Gaulding that he was acquainted with the general reputation of Anny Moss for chastity in the neighborhood of Garland, in Dallas County, Texas, and that her reputation for chastity in that vicinity was bad. Appellant objected, because the same was irrelevant, immaterial, and incompetent; because the character of said witness for truth and veracity could not be impeached by such evidence; because the State could not introduce such evidence, the same being original evidence on the part of the State, for any purpose; because said Anny Moss had been introduced by defendant as a witness and had testified to material facts, and the purpose of the evidence was solely to prejudice defendant's case before the jury. It is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good. Stayton v. State, 32 Tex.Crim. Rep.; Woodard v. State, 58 S.W. Rep., 144; McCreary v. State, 38 Tex.Crim. Rep.; McAfee v. State, 17 Texas Crim App., 139; Conway v. State,33 Tex. Crim. 327; Lancaster v. State, 36 Tex. Crim. 200. This seems to be the uniform rule in this State. However, at common law, numerous authorities can be found pro and con on the proposition. The only qualification that we have ever placed upon this proposition is, that a witness may be asked on cross-examination if she is a common prostitute, and the party asking the question (State or defendant) is bound by the answer given, and can not call other witnesses to impeach her testimony or disprove her answer. McCreary v. State, 38 Tex. Crim. 613. The eleventh assignment of error complains of the introduction of the same character of testimony.

Appellant also complains that the court erred in permitting the State to prove by defendant, on his cross-examination, that when he went to John Burns', after the separation between himself and his wife, that he (defendant) took his little boy, Homer Hall, and put him in the buggy, with the intention of taking him home with him and keeping him a short while. We do not think it was proper to allow the introduction of this testimony. The rights of the husband and wife with reference to the care and custody of the children are the same; and if they separate prior to the decree of divorce, or a proper order of the trial court awarding the care, custody, and control of the children exclusively to one parent, each parent has the equal right to the custody of the children. Hence it is prejudicial to introduce before the jury the acts of defendant showing efforts on his part to take the children away from his wife, as shown by this bill.

We do not deem it necessary to pass upon any other questions presented by the assignments of error.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.